IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMP (M) No. 505 of 2024
State of H.P. & Another ...Applicants/appellants.
Versus
Officers Welfare Association & others. ...Non-applicants/Respondents.
Corum
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Applicants. Mr.Dilip Sharma, Senior Advocate, with
Mr.Manish Sharma, Advocate and
Mr.Pranjal Munjal Advocate on behalf of
Mr.Vedhant Ranta, Advocate, for the
respective applicants/appellants.
For the Respondents: Mr.Sunil Mohan Goel, Senior Advocate,
alongwith Mr.Raman Jamalta, Advocate, for
respondents No. 1, 2, 4 to 8 and 10 to 23.
Respondents No. 3 and 9 have expired
(their names have been deleted vide order
dated 31.7.2024).
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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CWPOA No. 3215 of 2019, titled as HPSIDC Officers Welfare
Association & others Vs State of H.P. & others.
2. The application has been vehemently opposed by the
22.3.2012 by filing CWP No. 1945 of 2012, titled as HPSDIC Officers
Welfare Association and others Vs. State of H.P. & others. During
pendency of the Writ Petition, H.P. State Administrative Tribunal was
transferred to the erstwhile H.P. State Administrative Tribunal for listing for
consideration on 22.7.2015. Till then no reply was filed by the respondents-
State. Matter remained pending before the Tribunal as TA No. 4088 of
2015, till abolition of H.P. State Administrative Tribunal. After abolition of
registered as CWPOA No. 3215 of 2019. Applicant-Respondent No. 2 had
filed reply to the petition on 10.4.2012. Whereas Applicant No. 1-State did
"i) What is the decision taken with regard to the approval of the
amendment in the bye-laws as proposed by the 2 nd respondent? The
order thus passed shall be made available along with the affidavit.
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ii) Is there any Government Corporation which is permitted to follow its
own bye-laws as far as the payment of gratuity is concerned?
4. One application was filed by the applicant No. 2-Corporation
for placing on record copy of Board Resolution dated 30.4.2014 and copy of
Minutes of Service Committee dated 2.5.2014.
5. The respondents had preferred the Writ Petition against the
decision of the Government communicated vide communications dated
24.10.2011 and 22.2.2012, whereby Corporation was asked by the
Government to implement decision taken in March, 1991 approving the
pattern for payment of gratuity to the employees of H.P.S.I.D.C. like
Government employees with direction that excess payment made to any of
the employees/retiree should be recovered and responsibility of
officers/officials involved be fixed and to send compliance immediately and
to take disciplinary action against the persons who had allowed the gratuity
higher than gratuity payable to employees of the State Government.
6. Taking into consideration material on record, learned Single
Judge has allowed the petition with following observations"-
"17. Apparently, Clause-143 of Articles of Association, more particularly,
Sub-Clause (ii), thereof has been incorporated for the purposes of
government control on the affairs of SIDC touching the matters having
serious bearing on its affairs. The vestment of such powers with State
Government cannot be said to be absolute in the sense that it cannot be
used arbitrarily. The arbitrariness corrodes the very purpose of vestment
of power. More absolute the power, higher becomes the necessity for its
use with fairness and due care/caution. The decision of the authority
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having power need to have some rationale and justifications, which
should also have the backing of objectivity.
18. In the given facts of the case in hand, the State Government has
failed to justify its stand, so much so that, it has not been able to file reply.
Nothing has come forth, as to why, the SIDC has been directed to follow
the principle of payment of gratuity as applicable to the State Government
employees. There should not be any reason with the State to deny the
benefit available to the petitioners, when there is no financial burden in
this regard on the State Government. The gratuity is paid by LIC. The
premium is paid to LIC from the contributions of the petitioners and other
similarly situated employees of SIDC. During the course of hearing, it has
been submitted that SIDC has, in fact, received the amount of gratuity in
respect of those petitioners who have, now, retired in terms of scheme.
SIDC has paid such petitioners a sum of Rs.10,00,000/- only and
remaining amount is lying with it. This further makes the stand of
respondent-State totally incomprehensible.
19. It is further not understandable, in case, the State Government had
felt any financial constraints for granting the benefit of gratuity to the
petitioners in terms of Bye Laws of SIDC, it would not have meddled with
its entity by merging sick undertakings with the profit earning undertaking.
Even if it was to be done, it should not have been done at the cost of the
vested right of its employees.
20. This Court has not been able to find any reason for justification of
stand taken by State Government, in result, petition is allowed. Annexure
P-13, dated 24.10.2011, and Annexure P-15, dated 22.02.2012, are
quashed. Respondent No. 1 is directed to ratify the amendment carried
out by the Board of Directors of SIDC with a purpose to enable it to
disburse the gratuity to the petitioners in terms of its Bye Laws as also the
Group Gratuity Scheme of LIC adopted by it."
7. According to applicants, after passing of judgment, copy of
judgment was downloaded by the applicants on 29.12.2022 from the
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website of the High Court and matter was taken up with the Finance
Department on 30.12.2022 to seek advise on the judgment.
8. Vide communication dated 24.1.2023 Finance Department
advised applicant No. 1 to examine additional financial implications as a
result of judgment and capacity of HPSIDC to bear financial liability and
further impact, and to revert back the matter to the Finance Department, if
needed.
9. Vide communication dated 6.2.2023, applicant No. 2 had
submitted the matter to the Government.
10. On 13.2.2023, applicant No. 1 asked the applicant No. 2 to
respond to the advise of the Fiance Department. In the meanwhile Office of
Advocate General had also supplied certified copy of judgment to the
applicant/State on 21.3.2023. Applicant No. 1 transmitted the copy to
applicant No. 2 for further action.
11. On 11.4.2023 applicant No. 2 responded to the advise of
Finance Department through applicant No. 1 with following information:-
"Further, as per advise of the F.D., the required information(s) are as
under:-
1) Till September, 2011,the Corporation had paid the gratuity to its retired
employees as per Group Gratuity Scheme i.e. 15 days salary as on the
date of retirement on each year service subject to maximum of 20
months' salary as per earlier decision held by the BOD in its meeting held
on 10th March, 1986 (copy at Annexure-A) and also decision taken by
BOD in its meeting held on 23.09.1992 (copy at Annexure-D). Thereafter,
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from October, 2011, the Corporation is paying gratuity as per State Govt.
Rules and rates i.e. 15 days salary subject to maximum of 33 years i.e.
16½ month salary on the basis of decision taken by the BOD in its
meeting held on 19.10.1990 (copy at Annexure-B) and approval obtained
from the State Govt. under Article-143 (ii) of the Articles of Association of
the HPSIDC vide letter dated 7th March, 1991 (copy at Annexure-C) and
also on the basis of State Govt. directions conveyed from time to time
vide their letters dated 24.10.2011 & 22.02.2012 which are now quashed
by the Hon'ble High Court vide judgment delivered in the matter on
27.12.2022 (copies at Annexure -I).
2) In case Corporation pays the gratuity continuously as per Group
Gratuity Scheme of the LIC in respect of employees who had retired from
the service of the Corporation between October, 2011 to December,
2022, the financial implication i.e. differential amount between Govt.
Gratuity and Group Gratuity Scheme adopted by Corporation from
LIC. shall be approx. Rs. 3.00 crores. and the detail of which is at
Annexure-F.
3) In case Corporation pays the gratuity continuously as per Group
Gratuity Scheme of the LIC in respect of existing employees to be retired
from the service of the Corporation from January, 2023 onwards, the
financial implication i.e. differential amount between Govt. Gratuity
and Group Gratuity Scheme adopted by the Corporation from LIC
shall be approx. Rs. 4.00 crores. and the details of which is at
Annexure-G.
4) As per statement of Group Gratuity Scheme of LIC as on 30.09.2022,
the amount of Rs.5,86,29,425/- is available in the account of Corporation
and copy of statement is enclosed at Annexure-H.
5) Till date, the financial position of the. Corporation is satisfactory and it
is fully sustainable and meeting its financial commitments through its own
resources. As per draft balance sheet for the year 2020-21, the
Corporation has earned net profit of Rs.5.54 Crores.
6 There should not be two sets of Rules for payment of gratuity to the
employees of the Corporation as it may invite unnecessary litigation in
future."
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12. Applicant No. 2 submitted reminder to applicant No. 1 for
conveying decision of Government on 27.4.2023.
13. After April, 2023 the matter remained pending with the
applicant No. 1/Finance Department and on 1.9.2023 Finance Department
raised similar issues as was raised in January, 2023 and it was again
communicated to applicant No. 2 vide communication dated 4.9.2023 by
sending the file back with following observations:-
"N/114-127:- Examined in the Finance Department. It is observed that
the A.D. (Industries) has not clarified as on what issue it needs
clarification and has only supplied the information which was to be
analysed and decision taken at their level as per our earlier advise. The
A.D. is further advised that the additional liability if any has to be borne
out of own funds by HPSIDC and there should not be any financial
requirement from the Government lateron."
14. In response thereto, applicant No. 2, resubmitted the details
submissions like earlier with the request to reconsider the matter and permit
to comply with the directions of the Court as the financial position of the
Corporation was quite satisfactory and it was fully sustainable to meet out
its financial obligations from its own resources and requisite amount was
also available for transfer to the accounts of the Corporation, on account of
adoption of Group Gratuity Scheme of LIC by the Corporation.
15. Matter was again referred to the Finance Department on
31.10.2023. However, instead of responding to information, on 22.11.2023
Finance Department advised to take up the matter with the Law
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Department. Thereafter file tossed between applicants No. 1 and 2 and
matter was referred to Law Department on 19.2.2024 and it was received
back on the same date with advise of Law Department to assail the
judgment dated 27.12.2022.
16. Applicants have to show and establish sufficient cause for not
preferring the appeal within limitation period as required under Section 5 of
the Limitation Act, which reads as under:-
"5. Extension of prescribed period in certain cases.-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 satisfied the
court that he had sufficient cause for not preferring the appeal or making
the application within such period".
17. The Hon'ble Supreme Court in Postmaster General and
Others Vs. Living Media India Ltd. and another reported in (2012) 3 SCC
563 has observed as under:-
"28. 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 bona fides, 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.
29. 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 bona fide effort, there
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is no need to accept the usual explaination 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 the government departments. The law
shelters everyone under the same light and should not be swirled for the
benefit of a few".
18. In the Sheo Raj Singh (deceased) through LRs and others
vs. Union of India and another reported in (2023)10 SCC 531, the
Supreme Court after taking into consideration various pronouncements has
held as under:-
"30. Considering the aforementioned decisions, there cannot be any
quarrel that this Court has stepped in to ensure that substantive rights of
private parties and the State are not defeated at the threshold simply due
to technical considerations of delay. However, these decisions
notwithstanding, we reiterate that condonation of delay being a
discretionary power available to courts, exercise of discretion must
necessarily depend upon the sufficiency of the cause shown and the
degree of acceptability of the explanation, the length of delay being
immaterial.
31. Sometimes, due to want of sufficient cause being shown or an
acceptable explanation being proffered, delay of the shortest range may
not be condoned whereas, in certain other cases, delay of long periods
can be condoned if the explanation is satisfactory and acceptable. Of
course, the courts must distinguish between an 'explanation' and an
'excuse'. An 'explanation' is designed to give someone all of the facts and
lay out the cause for something. It helps clarify the circumstances of a
particular event and allows the person to point out that something that
has happened is not his fault, if it is really not his fault. Care must
however be taken to distinguish an 'explanation' from an 'excuse'.
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Although people tend to see 'explanation' and 'excuse' as the same thing
and struggle to find out the difference between the two, there is a
distinction which, though fine, is real.
32. An 'excuse' is often offered by a person to deny responsibility and
consequences when under attack. It is sort of a defensive action. Calling
something as just an 'excuse' would imply that the explanation proffered
is believed not to be true. Thus said, there is no formula that caters to all
situations and, therefore, each case for condonation of delay based on
existence or absence of sufficient cause has to be decided on its own
facts. At this stage, we cannot but lament that it is only excuses, and not
explanations, that are more often accepted for condonation of long delays
to safeguard public interest from those hidden forces whose sole agenda
is to ensure that a meritorious claim does not reach the higher courts for
adjudication."
19. From the material placed on record, it is apparent that
applicant No. 2 had submitted requisite information to applicant No. 1 as
well as Finance Department, stating therein that applicant No. 2 was having
satisfactory financial position to meet its financial commitments through its
own resources and further that by applying different Rules to the
pensioners, there shall be two sets of Rules for payment of gratuity to the
employees of the Corporation which will invite unnecessary litigation as well
as discrimination, disparity amongst employees of the Corporation.
Thereafter, applicant No. 1 as well as Finance Department did not take any
decision till September, 2023 and in September, 2023 again the same
issues were raised, which were raised earlier in January, 2023 by applicant
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No. 2 to applicant No. 1 and which were responded by applicant No. 2 to
applicant No. 1 promptly.
20. Pleadings of the application and material placed on record
clearly depicts that explanation being rendered by the applicants is not
explanation depicting sufficient cause which prevented the applicants from
filing the appeal within time, but only a lame excuse. As observed in Sheo
Raj Singh's case, submissions made by and on behalf of applicants,
nowhere explain the satisfactory conduct on the part of applicants,
especially applicant No. 1 as well as Finance Department, so as to entitle
the applicants for coronation of delay. In fact, there is no cause for
keeping the matter pending since April, 2023 till filing of the appeal in
January, 2024 as at last again same queries were raised by the Finance
Department and when those were responded by the applicant No. 2, re-
iterating its earlier stand, the matter was simply advised to be referred to
the Law Department after a period of about 1 year and it appears that Law
Department was involved only to create the circumstances to justify the
inordinate and extraordinary delay in preferring the appeal, that too on the
ground which have no merit as apparent from the record available in the
appeal as well as in the Writ Petition.
21. It is also apt to record that as observed by the Supreme Court
in The Special Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma,
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(1996) 10 SCC 634 that it would not be necessary for the State to provide
day to day explanation of delay while seeking condonation of the same and
the Court should be pragmatic, but not pedantic by not adopting the strict
standard of proof leads to grave miscarriage of public justice, resulting in
public mischief by skillful management of delay in the process of filing the
appeal. However, in the given facts and circumstances of present case,
applicants are not entitled for benefit of the aforesaid observation/decision
of the Supreme Court, because, though an effort has been made to place
on record day to day movement of file from one Office to another, but it,
instead of explaining sufficient cause, has established that file was tossed
between applicants No 1 and 2 for no reasons and had also remained
pending for more than 5 months without any cause or reason. Therefore,
recital of date to day movement of file is also not helpful to the applicants in
present case.
22. As apparent from the record, plea of the applicants to assail
the impugned judgment is not sustainable and the learned Single Judge on
the basis of material on record has rightly quashed the impugned
directions/decisions dated 24.10.2011 and 22.2.2012, by observing that it is
not understandable that why State is denying benefits available to the
employees of the Corporation, when there is no financial burden in this
regard on the State Government, because gratuity and pension is paid by
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the LIC from the contribution of employees of the SIDC, and SIDC has
infact received the amount of gratuity in respect of its employees, especially
respondents, who have now retired in terms of scheme. Therefore, in our
opinion, in present matter neither there is any public interest involved nor
Applicants have a good case on merits in the appeal.
23. For the material placed before us and applying the principles
propounded by the Supreme Court in its pronouncements referred (supra),
we are of the considered opinion that no sufficient cause which prevented
the filing of appeal within limitation period is made out and accordingly no
case is made out for condonation of delay. Accordingly application is
dismissed and disposed of.
Proposed appeal alongwith application, also stands disposed
of in aforesaid terms.
(Vivek Singh Thakur),
Judge.
(Ranjan Sharma),
Judge.
27th May, 2025
(Keshav)
