Executive Engineer vs Ghulam Mohd. Ahtoo And Another
2021 Latest Caselaw 897 j&K

                                                          Sr. No. 45

            HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU


                                                         CONC 26/2016
                                                         IA(1/2016)

Executive Engineer, PWD Doda
                                                          .... Petitioner(s)

                           Through:- Mr. Ravinder Gupta, AAG

             v/s

Ghulam Mohd. Ahtoo and another
                                                        ..... Respondent(s)

                           Through:- None

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                             ORDER

1. This order shall dispose of the application seeking condonation of

delay in filing of an appeal under Employees Compensation, Act against the

judgment/award dated 30.06.2014 ( for brevity „the impugned award‟) passed

by the Assistant Labour Commissioner, Doda ( for brevity‟ Commissioner‟).

2. The background facts those emerge from the case in hand are that

on 03.01.2003 non-applicant/respondent No. 1 herein in the course of his

employment by a Contractor with Executive Engineer R&B Special Sub-

Division, Doda met with an accident and received personal injuries as a result

of which he suffered permanent disablement to the extent of 40%. The

claimant-respondent No. 1 at the time of accident was 46 years old.

3. The non-applicant/respondent No. 1 herein instituted a claim

petition under the provisions of the Employee‟s Compensation, Act, 1923 and

an award came to be passed by the Commissioner on 30.06.2014 allowing an 2 Cond 26/2016

award of Rs.83,810/- along with interest @ 12% per annum to be calculated

from the date of accident till the date of deposit of the awarded amount.

4. The impugned award is questioned in the appeal accompanying

the instant application.

5. It is contended that the claim of the non-applicant/respondent No.

1 herein before the Commissioner was objected by the applicant herein by

taking a specific stand that the non-applicant/respondent No.1 herein was a

labourer engaged by the Contractor, namely, R. C. Gupta, and was not under

the employment of applicant herein. The applicant herein further denied its

liability on the ground that the Commissioner has failed to establish any

contract of engagement between the applicant and non-applicant/respondent

No. 1 herein and in the absence of contract of engagement, the applicant

cannot be held liable to pay the awarded compensation. It is stated that

Commissioner vide impugned award rejected the defenses raised by the

applicant-company and awarded an amount of Rs.83,810/- without

considering the said deficiencies.

6. In the application, it is being stated while seeking condonation of

delay by the applicant herein that the delay in filing the appeal has been

caused due to administrative exigencies and in the process of seeking opinion

of the Law Department.

7. A liberal approach is prayed to be adopted in the application and

inasmuch as, it is being contended that the delay occasioned in filing the

appeal is neither deliberate nor intentional, but occurred due to administrative

formalities.

Heard learned counsel for the applicant and perused the

record.

3 Cond 26/2016

8. Perusal of the record reveals that no explanation as to when the

counsel for the applicant herein applied for a certified copy of the impugned

award and on which date the same was received .The only ground taken by

the applicant is that the delay has been caused due to administrative

exigencies and also that it took time in seeking opinion of the Law

Department.

9. Before proceeding to analyze the application and grounds urged

therein for condonation of delay it would be appropriate and advantageous to

refer to the legal position enumerated by the Apex Court on the subject of

condonation of delay.

10. The law on the subject of section 5 of the Limitation Act is no

more res integra and there is a long line of decisions rendered and delivered

by the Hon‟ble Apex Court on the subject.

11. The Apex Court in State of Madhya Pradesh and others and

Bherulal, 2020 (10) SSC 654, at paras 3 and 5 has observed as under: -

"3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government [LAOv.Katiji]. This position is more than elucidated by the judgment of this Court in Post Master General v. Living Media India Ltd. (2012) 3 SCC 563 where the Court observed as under:-

"27) 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 4 Cond 26/2016

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.

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 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.

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 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 everyone under the same light and should not be swirled for the benefit of a few.

30) 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 5 Cond 26/2016

Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay." Eight years hence the judgment is still unheeded.

5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay."

12. Further the Hon‟ble Apex Court in Perumon Bhagvathy

Devaswam vs. Bhargavi Amma, 2008 (8) SCC 321, at para 13 (iii) enunciated

besides others the following principle qua an application under Section 5 of

the Limitation Act:-

"(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation."

13. A Reference to the judgment of the Hon‟ble Apex Court reported

in AIR 1998 SC 2276, titled as P. K. Ramachadran v. State of Kerala would

also be appropriate and advantageous, wherein at para 6 following is noticed.

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would 6 Cond 26/2016

stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

14. Further the Apex Court in case titled Office of the Chief Post

Master General and others vs. Living Media India Ltd. and another, 2012

(3) SCC 563 has observed as under:-

" ........... 29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

15. The application in hand seemingly is filed with the impression

that in seeking condonation of delay, the expresses „sufficient cause‟ would

receive as liberal construction in favour of the applicant being Government

department. It is however, manifest and without any doubt that the

explanation offered by the applicant in the application in hand cannot by any

sense of imagination said to be sufficient, plausible, and cogent. The

explanation per se is cryptic and casual. Even the affidavit accompanying the

application in support thereof is a stereotyped one. The applicant herein

seemingly has let the period of limitation run against it. The reason stated in

the instant application is not only flimsy, but also shows casual approach of

the applicant in dealing with a Court case.

16. Risking repetition it is worth mentioning herein that the instant

application relates to the condonation of delay in filing an appeal under the

provisions of Employees Compensation Act against the award passed in

favour of non-applicant respondent No. 1 herein who has sustained injuries in 7 Cond 26/2016

an accident during the employment of the applicant herein. A claim lodged

before the Commissioner under the Employees Compensation Act and an

award passed thereon in such cases aims at providing cheap and speedy

remedy and justice by way of compensation to a victim. A justice oriented

approach thus, in such matters is possible if the courts lean against the casual

and non-diligent approach and unbecoming conduct of the applicants seeking

condonation of delay in filing the appeals against such awards, unless, a

sufficient cause is shown in tune and line with the principles and propositions

laid down by the Hon‟ble Apex Court. The said principle of sufficient cause,

however, as noticed above is missing in the instant case

17. Viewed in the context what has been observed, considered and

analyzed hereinabove, the application in hand thus, entails dismissal and is,

accordingly, dismissed. The accompanying appeal, consequently shall also

stand dismissed.

(Javed Iqbal Wani) Judge Jammu 16.08.2021 Bir Whether the order is speaking: Yes Whether the order is reportable: Yes 8 Cond 26/2016

BIR BAHADUR SINGH 2021.08.27 11:02 I am the author of this document