Gujarat High Court
State Of Gujarat vs Gitaben Prabhudas Kamothi on 19 June, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/CA/2280/2024 ORDER DATED: 19/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO.
2280 of 2024
In F/LETTERS PATENT APPEAL NO. 11713 of 2024
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STATE OF GUJARAT & ORS.
Versus
GITABEN PRABHUDAS KAMOTHI & ANR.
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Appearance:
MR ADITYA S. PATHAK, AGP for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 19/06/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Pursuant to the order dated 03.05.2024, the applicant
No.1 - State has filed further affidavit explaining the delay
caused in filing the appeal. The same is ordered to be taken on
record.
2. Bare perusal of the said affidavit, it reveals that the
applicants have been lethargic in pursuing the Letters Patent
Appeal.
3. We find that after the judgment and order dated
21.02.2022 passed by the learned Single Judge, which is
impugned in the captioned Letters Patent Appeal, the applicant
No.2 - Directorate of Primary Education, Gujarat State vide a
letter dated 14.03.2022 addressed to the District Primary
Education Officer (DPEO) to take further steps to file intra court
appeal. The said proposal was forwarded by the Directorate
vide letter dated 31.03.2022.
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C/CA/2280/2024 ORDER DATED: 19/06/2024
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4. The District Primary Education Officer responded on
30.06.2022 and again after a period of almost one month i.e.
on 03.08.2022, documents were supplied to the Directorate by
DPEO. On 25.08.2022, necessary proposal was forwarded by
the Directorate to the Education Department on 25.08.2022
and after a period of almost 20 days on 15.09.2022, the office
of the applicants sought concurrence from the Finance
Department, Government of Gujarat.
5. Again a clarification was sought from the Directorate on
20.01.2023 i.e. almost after a period of more than two and half
months, who in turn sought clarification from the office of the
DPEO, which gave its clarification on 06.02.2023 and
ultimately, the office of the deponent forwarded the
clarification to the Finance Department, Government of Gujarat
after a period of two months i.e. on 06.04.2023. Again the
Finance Department, Government of Gujarat sought
clarification from the office of the deponent i.e. the applicants
vide a letter dated 20.06.2023 i.e. after a period of almost two
months.
6. The appellant authorities inter se went on seeking the
clarification from each other and such clarifications were
responded on 20.07.2023. Further clarifications were sought,
which were provided to the Finance Department, Government
of Gujarat on 03.08.2023 and 10.08.2023 and on 04.09.2023,
the file seeking approval of the Legal Department to prefer
intra court appeal was moved. Thus, the file for seeking
approval, for the first time from the Legal Department, was
moved on 04.09.2023 and the judgment was passed on
21.02.2022.
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C/CA/2280/2024 ORDER DATED: 19/06/2024
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7. Again clarification was sought on 11.09.2023 and on
30.10.2023 and the Legal Department submitted further
clarification and the said department gave permission to prefer
intra court appeal on 09.12.2023 and the draft of appeal was
prepared and approved on 04.03.2024 i.e. after period of
almost three months.
8. Ultimately, the appeal was presented to the Registry of
this Court on 08.04.2024 i.e. after a period of one month and
after the approval granted to the original respondents of the
writ petition.
9. The afore-noted facts unquestionably establish the
remissness on the part of the appellants - authorities in
pursuing the Letters Patent Appeal. The appeal is preferred
only for the reason that the learned Single Judge has erred in
granting the relief to a retired employees for counting his
pensionable service, which was rendered in grant-in-aid
college from 18.07.1971 to 02.12.1981 and also to give
appropriate interest at the rate of 6% on such pensionary
benefits.
10. The facts suggest that the widow of the original
employee, who had litigated before this Court and filed the writ
petition initially being Special Civil Application No.8283 of
1995, has passed away and thereafter, his wife - present
respondent is pursuing the litigation and claiming the
pensionary benefits of her late husband. The facts which are
not in dispute that the late husband of the respondent was
dismissed from service, which was subject matter of challenge
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C/CA/2280/2024 ORDER DATED: 19/06/2024
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in Special Civil Application No.8283 of 1995. The writ petition
was rejected and such order was assailed before the Division
Bench by filing the Letters Patent Appeal No.995 of 1997 and
by the order dated 18.01.2010, the Division Bench allowed the
appeal by directing the respondents to modify the punishment
and holding that the punishment awarded is disproportionate
and order of lesser punishment is required to be passed.
Considering the length of service, the Division Bench directed
the respondents to pay pension to the husband of the
respondent, who had pursued the litigation, ultimately passed
away on 01.02.2011. The Education Department on
23.09.2020 passed an order approving the duplicate service
book i.e. after a period of 10 years from the date of order
dated 18.01.2010 passed by the Division Bench. The actual
date of retirement as directed by the Division Bench was from
01.02.2010 of the late husband - deceased employee, however
the State authorities did not treat the service of the deceased
employee from 03.12.1981 to 01.02.2010 for the purpose of
pension, which was rendered by him in grant-in-aid college.
Such fact has been admitted by DPEO in his communication
dated 10.01.2022.
11. In light of the aforesaid communication as well as facts,
the learned Single Judge directed the appellant authorities to
count the service rendered by the late husband of the
respondent from 18.07.2071 to 02.12.1981 for the purpose of
computing pension and other terminal benefits. The learned
Single Judge has also awarded 6% interest on such amount.
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C/CA/2280/2024 ORDER DATED: 19/06/2024
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12. As noticed hereinabove, the appellant authorities had
pursued the entire issue in a very lethargic manner and they
were not serious in assailing the orders and directions issued
by the learned Single Judge promptly and they whiled away
time by seeking clarification from each other.
13. At this stage, it would be apposite to refer to the
observations made by the Supreme Court in the case of Ajay
Dabra Vs. Pyare Ram, [AIR 2023 SC 698]. The Supreme
Court in paragraph No.5 has observed thus : -
"5. What we have here is a pure civil
matter. An appeal has to be filed within
the stipulated period, prescribed under the
law. Belated appeals can only be condoned,
when sufficient reason is shown before the
court for the delay. The appellant who
seeks condonation of delay therefore must
explain the delay of each day. It is true
that the courts should not be pedantic in
their approach while condoning the delay,
and explanation of each day's delay should
not be taken literally, but the fact
remains that there must be a reasonable
explanation for the delay. In the present
case, this delay has not been explained to
the satisfaction of the court. The only
reason assigned by the appellant for the
delay of 254 days in filing the First
Appeal was that he was not having
sufficient funds to pay the court fee! This
was not found to be a sufficient reason for
the condonation of delay as the appellant
was an affluent businessman and a hotelier.
In any case, even it is presumed for the
sake of argument that the appellant was
short of funds, at the relevant point of
time and was not able to pay court fee,
nothing barred him from filing the appeal
as there is provision under the law for
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filing a defective appeal, i.e., an appeal
which is deficient as far as court fee is
concerned, provided the court fee is paid
within the time given by the Court. We
would refer to Section 149 of Civil
Procedure Code, 1908 which reads as
under :-
"Section 149: Power to make up
deficiency of Court Fees.- Where the
whole or any part of any fee prescribed
for any document by the law for the time
being in force relating to court fees
has not been paid, the Court may, in its
discretion, at any stage, allow the
person, by whom such fee is payable, to
pay the whole or part, as the case may
be, of such court-fee; and upon such
payment the document, in respect of
which such fee is payable, shall have
the same force and effect as if such fee
had been paid in the first instance." It
also needs to be emphasized that this
Court as well as various High Courts,
have held that Section 149 CPC acts as
an exception, or even a proviso to
Section 4 of Court Fees Act 18701. In
terms of Section 4, an appeal cannot be
filed before a High Court without court
fee, if the same is prescribed. But this
provision has to be read along with
Section 149 of CPC which we have
referred above. A short background to
the incorporation of Section 149 in CPC
would explain this aspect.""
14. Thus, the Supreme Court has held that an appeal has to
be filed within the stipulated period, prescribed under the law
and belated appeals can only be condoned, when sufficient
reason is shown before the Court explaining the delay and the
delay of each day has to be explained however, the Courts
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C/CA/2280/2024 ORDER DATED: 19/06/2024
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should not be pedantic in their approach while condoning the
delay, and explanation of each day's delay should not be taken
literally, but the fact remains that there must be a reasonable
explanation for the delay.
15. The explanation given in the present application is only
that the appellants whiled away the time of more than 747
days' time in seeking clarifications only from each other. Even
otherwise on merits the State has no case.
16. Under the circumstances as noted hereinabove, we reject
the present civil application seeking condonation of delay in
filing the Letters Patent Appeal.
17. As a sequel, Letters Patent Appeal is also stand rejected
accordingly.
(A. S. SUPEHIA, J)
(MAUNA M. BHATT,J)
MAHESH/07
