Gujarat High Court
Vijaykumar Subhashbhai ... vs Regional Director on 30 November, 2021
Bench: A.G.Uraizee
C/CA/4656/2019 ORDER DATED: 30/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 4656 of 2019
In F/FIRST APPEAL NO. 31366 of 2019
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VIJAYKUMAR SUBHASHBHAI BALDANIYA
Versus
REGIONAL DIRECTOR
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Appearance:
AAKASH D MODI(7449) for the Applicant(s) No. 1
MS DIMPLE A THAKER(6838) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 30/11/2021
ORAL ORDER
1. The present application under Section 5 of the
Limitation Act is preferred to condone the delay, which has
occurred in preferring First Appeal to assail the impugned
judgment and order dated 19.5.2018 passed by the ESI
Court, Ahmedabad in ESI Second Appeal No.5 of 2018.
2. I have heard Mr.AD Modi, learned advocate for the
applicant and Ms.DA Thaker, learned advocate for the
respondent.
3. The Respondent has resisted this application by filing
reply.
4. Mr.Modi, learned advocate submits that delay is
explained in detail in paragraph No.4 of rejoinder affidavit.
According to his submission, the applicant hails from
weaker section of the society. He further submits that the
applicant renders disability on account of injury suffered
by him in course of his employment and he is unable to
C/CA/4656/2019 ORDER DATED: 30/11/2021
perform his duty and earn, as he did prior to injury. He
submits that weighing to such circumstances, the
applicant was in financial stress which prevented him from
preferring appeal within limitation period. He would
further submit that the applicant was represented by the
union before the lower authority. However, there was a
delay on the part of the representative of the union in
communicating the impugned order of the applicant. He
further submits that after collecting the copy of the
impugned order, the applicant was advised to file an
appeal. However, due to lack of financial resources he
could not engage an advocate. He submits that the
applicant has never abandoned his attention to prefer an
appeal to challenge the impugned order of the
Commissioner and the ESI Act being benevolent piece of
legislation. In view of the decision decision of this Court in
the case of Manglaben Maganlal Modi vs Jitendrabhai
Bhikhabhai PatelBhikhabhai, reported in 1994 (1)
GLH 151, the delay may be condoned.
5. Ms.Thaker, learned advocate has vehemently
opposed this application and submits that financial crisis is
no ground to condone the delay. According to her
submission, the applicant has not explained satisfactorily
reasons to condone the delay. She further submits that
the applicant ought to have availed of legal aid to prefer
the appeal, if he was in fact facing crunch. She submits
that the delay being very huge, may not be condoned
C/CA/4656/2019 ORDER DATED: 30/11/2021
under the garb of ESI Act being benevolent piece of
legislation. She, therefore, urges that the delay may not
be condoned.
6. It is trite at law of limitation founded on public policy.
The legislature does not prescribe limitation with the
object of destroying the rights of the parties but to ensure
that they do not resort to dilatory tactics and avail
appellate remedy promptly without delay. The idea behind
prescribing limitation is that every legal remedy must be
kept alive for a certain fixed period within which legal
remedy can be availed for redressal of legal injury. The
courts are, therefore, bestowed with the power to condone
the delay, if sufficient cause is shown for not availing the
remedy within the stipulated time. The Hon'ble Supreme
Court in the case of Oriental Aroma Chemical Industries
Ltd. Versus Gujarat Industrial Development Corporation,
reported in (2010) 5 SCC 459, has held as under:
".....The expression "sufficient cause" employed in Section 5
of the Indian Limitation Act, 1963 and similar other statutes is
elastic enough to enable the courts to apply the law in a
meaningful manner which sub serves the ends of justice.
Although, no hard and fast rule can be laid down in dealing
with the applications for condonation of delay, this Court has
justifiably advocated adoption of a liberal approach in
condoning the delay of short duration and a stricter approach
where the delay is inordinate..."
7. The applicant hails from weaker section of society. It
C/CA/4656/2019 ORDER DATED: 30/11/2021
is also not in dispute that he had suffered injury during the
course of his employment, and therefore, he had
instituted appeal. He had preferred Appeal (MAT) No.77 of
2017 under Section 54 of the ESI Act for review of the
assessment of his disability made by the Medical Board.
The appeal is partly allowed and disability is enhanced to
10% from 7% as assessed by Medical Board. The applicant
being unhappy by the enhancement of the disability, he
has preferred an appeal before this Court which is beyond
the period of limitation.
8. The applicant has explained the delay, which has
occurred in preferring the appeal, in paragraph No.4 of the
rejoinder affidavit. It emanates the explanation as
contained in paragraph No.4. The applicant was facing
dire financial stress, as he was unable to perform his duty
as before on account of injury suffered by him. We cannot
be oblivious of the fact that because of the injury and the
attended circumstances, the applicant would have been in
tremendous mandatory distress coupled with the fact that
he was represented before the lower authority by
representative of the union and according to his
explanation he was not promptly intimated the outcome of
the appeal before the lower authority. There is no denial
by the respondent on this crucial aspect of non
communication of the impugned order to the applicant by
the representative of union.
C/CA/4656/2019 ORDER DATED: 30/11/2021
9. Considering the overall facts and circumstances of
the case, I am of the view that the applicant has
satisfactorily explained the delay, which deserves to be
condoned. Therefore, the delay is condoned. The
application stands disposed of accordingly. Rule is made
absolute.
(A.G.URAIZEE, J)
ALI
