Bses Yamuna Power Ltd vs Babu Ram Jain & Ors
2013 Latest Caselaw 1029 Del

$~

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     LPA 113/2013

      BSES YAMUNA POWER LTD.                                        .... Appellant

                         Through:Mr.Sandeep Sethi, Senior Advocate with
                         Mr.Anupam Verma, Mr.Nikhil Sharma and Mr.Jibran,
                         Advocates.

                         versus

      BABU RAM JAIN & ORS.                                      ..... Respondents

                         Through:Ms.Maninder Acharya, Advocate for
                         Respondent No.1.
                         Mr.Jayant Nath, Senior Advocate with Mr.Sumeet
                         Pushkarna, Advocate for respondent No.3.


      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V.K. JAIN
                            ORDER

%                            01.03.2013

CM No.3682/2013

Exemption is allowed, subject to all just exceptions.

The application stands disposed of.

CM No.3681/2013(condonation of delay of 541 days in filing appeal)

This is an application seeking condonation of delay of 541 days in filing this

LPA 113/2013 page 1 of 10 appeal. Vide impugned order dated 4th August, 2011 passed in WP(C)

No.1597/1998, the learned Single Judge held that in view of the decision of the

Supreme Court in North Delhi Power Ltd. v. BSES Rajdhani Power Ltd. AIR

2010 SC 2302, the appellant was liable for payment of benefits consequential to

the penalty imposed upon the petitioner/respondent No.1 being set aside.

Accordingly, he directed the appellant to pay all consequential benefits by way of

arrears of salary and other retiral benefits to respondent No.1, within eight weeks

from the date of the order. The appellant was also directed to grant notional

promotions, to which respondent No.1 was entitled. The appellant was also

directed to pay Rs.5,000/- as cost to respondent No.1. Initially the appellant was

not impleaded as a party to the said writ petition. It was only vide order dated 4 th

August, 2011 that the learned Single Judge allowed applications for impleadment

of the appellant in place of Delhi Vidyut Board(DVB), Delhi Power Company

Limited (DPCL) and Delhi Vidyut Board Employees Provident Terminal Fund

2002 which were earlier impleaded as the respondents in the writ petition.

2. It is stated in the application under consideration that the judgment and

decree dated 4th August, 2011 having been passed in the absence of the counsel for

the appellant, came to its knowledge only on 23rd August, 2011 when a

LPA 113/2013 page 2 of 10 representation dated 20th August, 2011 was submitted by respondent No.1. It is

further stated in the application that the appellant was advised by its counsel not to

prefer an appeal against the impugned order dated 4 th August, 2011 without the

counsel realizing the implications of the directions contained in Paras 10 and 11 of

the said judgment. The appellant, in part compliance of the said order, passed

order treating the period from the date of the dismissal till date of the

superannuation of respondent No.1 as the period spent on duty and also granted

notional promotion to him. His pay was revised and the arrears of salary for the

period in question, based on revised salary and the cost of Rs.5,000/- were paid to

him. The appellant then calculated the leave encashment amount payable to

respondent No.1 and sent his pension file to respondent No.3 Trust for release of

the terminal benefits i.e. leave encashment, gratuity and pension. The Trust, vide

noting dated 29th September, 2011 took the view that respondent No.1 was not a

beneficiary of Pension Trust he having already been removed from the service of

the DVB and the Court having directed the appellant to release all his terminal

benefits and pension, expressed its inability to release any benefit to respondent

No.1 and returned the file to the appellant. This was followed by exchange of

notings dated 3rd October, 2011, 2nd December, 2011 and 8th December, 2011on the

file. The pension folder of respondent No.1was received by the appellant on 29th LPA 113/2013 page 3 of 10

December, 2011. The matter was again examined by the appellant and was

forwarded to the Trust on 3rd February, 2012. This led to further notings on the file

and exchange of communication between the appellant and the Trust.

On 31st July, 2012, respondent No.1 filed a Contempt Petition alleging

disobedience of order dated 4th August, 2011. Vide order dated 26th September,

2012, the Court while issuing notice directed the appellant to file reply to the

Contempt Petition. Yet another order came to be passed in the said contempt case

on 9th January, 2013. On 21st January, 2013, the appellant preferred a Review

Petition against the order dated 4th August, 2011. The Review Petition having been

dismissed, vide order dated 15th February, 2013 the appellant is before us by way

of an appeal not only against the order dated 15th February, 2013 but also against

the order dated 4th August, 2011.

3. As far as appeal against the order dismissing the Review Petition filed by the

appellant is concerned, the question as to whether such an appeal is maintainable

or not came up for our consideration in LPA No.73/2007 titled `Govt. of NCT of

Delhi & Ors. vs. Mool Chand Sharma' decided on 26.2.2013 and it was held that

an order dismissing a Review Petition is not a `judgment' either within the

meaning of Section 10 of Delhi High Court Act or Clause 10 of Letters Patent and

LPA 113/2013 page 4 of 10 therefore no LPA against such an order is maintainable.

4. As regards condonation of delay to the extent the appeal impugns, the order

dated 4th August, 2011, we may, before we examine the explanation given in the

application under consideration, would like to refer to a few decisions of the

Supreme Court on the subject.

In Balwant Singh v. Jagdish Singh (2010) 8 SCC 685, Supreme Court, inter

alia, held as under:-

"The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. (sic a lis). These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."

LPA 113/2013 page 5 of 10 In Maniben Devraj Shah vs. Municipal Corporation of Brihan, 2012 5

SCC 157, considering the expression „sufficient cause‟ used in Section 5 of

Limitation Act in the context of Municipal Corporation of Brihan, Mumbai,

Supreme Court, inter alia, observed as under:-

"24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.

25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."

In Office of the Chief Post Master General & Ors. v. Living Media India

Limited and Anr. 2012(2) SCALE 782, after reviewing its earlier decisions on the

subject, inter alia, held as under:-

LPA 113/2013 page 6 of 10 "12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process.

The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters LPA 113/2013 page 7 of 10 everyone under the same light and should not be swirled for the benefit of a few.

Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."

5. It is the appellant's own case that it had come to know of the order dated 4 th

August, 2011, on 23rd August, 2011 when it received a copy of the representation

dated 20th August, 2011 submitted to it by respondent No.1. This is also the case

of the appellant that the aforesaid order dated 4th August, 2011 was examined by its

counsel who advised not to prefer any appeal against the said order. As noted

earlier by us, vide order dated 4th August, 2011, the learned Single Judge expressly

held that in view of the decision in North Delhi Power Ltd.(supra), the appellant

was liable to payment all consequential benefits to the petitioner/respondent No.1.

Accordingly, it directed the appellant to pay all consequential benefits by way of

arrears of salary and other retiral benefits to respondent No.1, within a period of

eight weeks from the date of the order. The order dated 4 th August, 2011 being

absolutely clear and unambiguous, the appellant ought to have, if it disputed the

LPA 113/2013 page 8 of 10 correctness of the aforesaid order, impugned the said order by way of an appeal,

instead of sending the file to the Trust for making payment of leave encashment

and pension to respondent No.1. Be that as it may, admittedly, the Trust, vide

noting dated 29th September, 2011took a clear stand that it was not liable to pay the

leave encashment, gratuity and pension to respondent No.1 and sent the file back to

the appellant. In view of the stand taken by the Trust, the appellant ought not to

have waited further and should immediately thereafter have come to this Court by

way of an appeal. There was no justification in the appellant to continue exchange

of notings with the Trust, when not only the order passed by the learned Single

Judge directed payment of all terminal benefits by the appellant, the Trust had also

taken an unequivocal stand that it was not liable to pay the said benefits to

respondent No.1. Therefore, in our view, there is no satisfactory explanation for

the appellant not filing this appeal soon after 29 th September, 2011. In fact, even

on issue of contempt notice, vide order dated 26 th September, 2012, the appellant

did not bother to either file a Review Petition or an appeal to this Court. The

Review Petition was filed on 21st January, 2013 whereas the appeal was filed

on 25th February, 2013. In these circumstances, there is no escape from the

LPA 113/2013 page 9 of 10 conclusion that the appellant has filed to furnish any satisfactory explanation for

the inordinate delay in filing this appeal.

For the reasons stated hereinabove, the application under consideration is,

hereby, dismissed.

LPA No.113/2013

Since CM No.3681/2013 seeking condonation of delay in filing the appeal

has been dismissed, the appeal is liable to be dismissed being barred by limitation.

The appeal is dismissed accordingly.

                                                                 CHIEF JUSTICE



                                                                       V.K. JAIN, J

MARCH 01, 2013
KS




LPA 113/2013                                                            page 10 of 10