Skims Through Director vs Mohammad Ayoub Khan
2022 Latest Caselaw 685 j&K/2

                                                       Sr. No. 5
                                                       Regular Cause List
       IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                          AT SRINAGAR
                       CONDL No.169/2017
                              c/w
                         LPA No.99/2021
  SKIMS through Director                                 ...Appellant/Petitioner(s)

  Through: Mr. M.A. Chashoo, AAG
                                       Vs.

  Mohammad Ayoub Khan                                            ...Respondent(s)

  Through: Mr. N.A. Beigh, Sr. Advocate with
           Mr. Sofi Manzoor, Advocate
  CORAM:
  HON'BLE THE CHIEF JUSTICE
  HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
                                  ORDER

24.05.2022

Heard Shri. M.A. Chashoo, AAG for the appellants and Shri. N.A.

Beigh, Senior counsel assisted by Sofi Manzoor, for the respondent.

The appeal is directed against the judgment and order dated 29.09.2016

passed by the writ court. It is reported to be beyond time 204 days. In the delay

condonation application, it has been stated that the Law officer of the SKIMS

came to know of the aforesaid judgment only on 06.12.2016 whereupon on

being satisfied that the judgment in not in accordance with the service rules,

he referred the matter for legal opinion of the standing counsel of the

department. The opinion was submitted on 01.03.2017 and without losing any

time, the sanction for filing the appeal was granted on 30.03.2017. Upon the

sanction so granted, the Additional Advocate General requisitioned the record

for the purposes of drafting the appeal and appeal was finally prepared on

21.04.2017 and filed on 02.05.2017.

--2--

In view of above, it is contended that there is no willful and deliberate

delay on part of the appellants in filing the appeal.

The application for condoning the delay is contested by the respondent

by filing objections alleging therein that the delay has not been explained

properly and that there is no explanation for certain period more particularly

when the impugned judgment was passed in presence of the counsel for the

appellants.

It cannot be denied that there is a delay in filing the appeal but the

question is whether the appellants were negligent in filing the appeal or the

delay has occasioned only due to procedure involved in filing the appeal. No

doubt the judgment and order dated 29.09.2016 was passed in presence of the

counsel for the appellants but the fact that it was made available to the

department on 06.12.2016 is not disputed. There may be some fault on the

part of counsel in informing of the judgment to the department concerned but

the said lapse cannot be attributed to the appellants. Subsequent thereto the

matter was examined and the legal opinion was submitted by the counsel on

01.03.2017. Again, the delay, if any, in submitting the legal opinion by the

counsel is not attributable to the appellants. Thus, in the overall facts and

circumstances of the case though there may be some lethargy on the part of

appellants in pursuing the matter so as to file the appeal, the same is not of

such nature which may be described as negligence. Accordingly, in the overall

facts and circumstances of the case, we condone the delay in filing the appeal

subject to payment of costs of Rs.25000/= (Rupees twenty-five thousand only)

which shall be paid to the respondent within a period of two weeks from today.

--3--

Delay condonation application No.169/2017 is allowed and appeal be

listed on the date fixed i.e., 22.07.2022.

          (MOKSHA KHAJURIA KAZMI)                   (PANKAJ MITHAL)
                      JUDGE                           CHIEF JUSTICE

SRINAGAR
24.05.2022
Isaaq