Esic vs Malik Sweet House
2013 Latest Caselaw 1516 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+ FAO No.129 OF 2013 & CM 4114/2013 (for condonation of delay)

                                       Decided on : 3rd April, 2013


ESIC                                 ...... Appellant
                    Through:    Mr. Bhupesh Narula, Advocate.

                       Versus

MALIK SWEET HOUSE                                   ......      Respondent
             Through:           Nemo


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the appellant under Section 82 of the ESI

Act, 1948 against the order dated 17.9.2011 passed by Sh.Ajay

Goel, Sr. Civil Judge, dismissing the demand raised by the

appellant against the respondent.

2. The present appeal has been filed along with an application bearing

CM No.4114/2013 seeking condonation of 456 days delay in

refilling the appeal.

3. I have heard the learned counsel for the appellant. The learned

counsel has contended that the appeal though was filed in time,

however, on account of objections, the same was collected and

thereafter, the file was got misplaced in shifting of the department

of the appellant and was untraceable and the moment the file was

traced, it was re-filed and therefore, the delay of 456 days has been

occasioned. Accordingly, it is prayed that the delay of 456 days

may be condoned.

4. I have considered the submissions.

5. The appeal was originally filed on 15.11.2011. On the same date,

the objections were pointed out and the appeal was taken back by

the appellant and was re-filed only on 4.3.2013. According to

Rule-5 Chapter I Part A(a) Volume-V of the Delhi High Court

Rules and Orders, once an appeal/application is filed and

objections are raised and the brief is collected, it has to be re-filed

within a period of seven days from the date of collection.

6. In the instant case, after filing and collecting the appeal on the

same day, no steps were taken by the appellant for the purpose of

rectifying the defects and the explanation which has been given in

the condonation of delay application, is that the original record and

fair copies of the dim annexures could not be prepared as in the

month of October-November, the file of the present case as well as

the original record was not traceable in shifting and therefore, the

appeal could not be filed in time.

7. The file is stated to have been traced recently and thereafter, the

objections were removed and the matter was re-filed on 4th March,

2013.

8. No details of the person who was handling the file after collecting

the same, name of the Advocate who had originally filed the

appeal, the date on which the file was traced and how it was traced,

the date or the details of the file with which it was tagged have

been given. So much so that the appellant has not even pleaded

'sufficient cause' in the application, as per the requirement of

Section 5 of the Limitation Act. It has only been averred in the

application that the delay was unintentional and not deliberate.

The name of the official has not been mentioned and no action

seems to have been taken against the delinquent who was handling

the file. The same law of limitation is applicable both to the

private parties and to the public sector organizations or

Corporations. Therefore, in the present case, the conduct of the

appellant in filing the appeal was grossly negligent. It seems that

the appeal was filed more with a view to do lip service and

complete the paper work rather than a serious measure to assail the

order of the trial court. By condoning 456 days' delay in re-filing

the appeal, the Court will be only putting premium on the

delinquent and gross negligent behaviour of the employees of the

appellant. The minimum which was expected by the appellant

/corporation was that it should have initiated some disciplinary

action against the delinquent employees for not having acted with

due care and attention.

9. I therefore, feel that the appellant has not shown any 'sufficient

cause' for condoning 456 days' delay in re-filing the appeal which

has to be treated as a delay in original filing as it exceeds more than

seven days and accordingly, the application seeking condonation of

456 days' delay is dismissed.

10. Since the application for condonation of delay is dismissed,

therefore, the appeal is also dismissed as being time barred.

V.K. SHALI, J APRIL 03, 2013 RN