Madras High Court

The Managing Director vs G.Sivaprakasam on 2 August, 2021

                                                              WA No.SR69382/2020 & CMP No.6960/2021


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED :     02.08.2021

                                                           CORAM

                           THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
                                                  AND
                             THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY

                                              W.A.No.SR69382 of 2020
                                             and C.M.P.No.6960 of 2021

                     1. The Managing Director,
                        Tamil Nadu Water Supply and
                         Drainage Board,
                        No.31, Kamarajar Salai,
                        Chepauk, Chennai-600 005.

                     2. S.Venkatesan,
                        Deputy Chief Engineer,
                        Tamilnadu Water Supply and
                         Drainage Board,
                        Office of the Chief Engineer,
                        Northern Region, Vellore-6.                  .. Appellants/Respondents

                                                            Vs.

                     G.Sivaprakasam,
                     Work Inspector Grade-I,
                     Tamil Nadu Water Supply and
                      Drainage Board, RWS Division,
                     Arni-632 301.                                   .. Petitioner/Respondent
                                                           ***
                     W.A.No.SR69382 of 2020 : Writ Appeal filed under Clause 15 of
                     the      Letters   Patent   against    the   order   dated   24.04.2018     in
                     W.P.No.26108 of 2003.




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https://www.mhc.tn.gov.in/judis/
                                                                 WA No.SR69382/2020 & CMP No.6960/2021


                     Prayer in C.M.P.No.6960 of 2021 :                  Miscellaneous Petition filed
                     under Section 5 of the Limitation Act to condone the delay of 665
                     days in filing the Writ Appeal.
                                                              ***
                                      For Petitioners/    :      Mr.S.Eraskine Leo
                                      Appellants

                                      For Respondent      :      Mr.G.P.Arivuchudar
                                                                 for M/s.Law Square

                                                      JUDGEMENT

PUSHPA SATHYANARAYANA, J.

The Tamil Nadu Water Supply and Drainage Board filed Writ

Appeal No.SR69382 of 2020, questioning the order dated

24.04.2018 passed in W.P.No.26108 of 2003 along with the

Miscellaneous Petition seeking to condone the delay of 665 days in

filing the appeal.

2. The learned Counsel appearing for the appellants

contended that the respondent was proceeded with departmentally

on the imputations of misconduct and misbehaviour, which was

questioned by him in W.P.No.26108 of 2003 and this Court vide

order dated 24.04.2018 quashed the charge memo holding that the

invocation of the provisions of the TWAD Board Employees

(Discipline and Appeal) Regulations, 1972 was not wrong and the

https://www.mhc.tn.gov.in/judis/ WA No.SR69382/2020 & CMP No.6960/2021

appellants ought to have invoked the standing Orders of the Board

to do so. Holding so, this Court, while quashing the charge memo,

gave liberty to the respondent to issue fresh charge memo invoking

the standing order. The learned counsel contended that the

Standing Orders are not adopted by the appellants Board and thus,

the learned Single Judge ought not to have quashed the charge

memo. The learned counsel also contended that the appellants in

the process of getting legal opinion, consumed sometime, and

when they were about to file the writ appeal, COVID-19 lockdown

was imposed by the State, which caused the delay in filing the

appeal, which is neither willful nor wanton and prayed to condone

the delay.

3. Heard the learned counsel for the respondent on the

above submissions and perused the counter-affidavit of the

respondent.

4. The only reason assigned in the affidavit filed by the

appellants to canvass the condonation of delay application is that

the process of obtaining legal opinion to file the appeal took

sometime and before filing the appeal, COVID-19 lockdown was

https://www.mhc.tn.gov.in/judis/ WA No.SR69382/2020 & CMP No.6960/2021

imposed by the State, and thus, there was a delay of 665 days in

filing the appeal.

5. At this juncture, it is apposite to quote the judgment of

the Hon'ble Supreme Court in Esha Battacharjee V. Management

Committee of Raghunathpur Nafar Academy, 2013(12) SCC

649, wherein, the Hon'ble Apex Court culled out certain guidelines,

by referring a catena of earlier decisions, while dealing with the

application for condonation of delay and the excerpts of the same

would run thus:

“21.From the aforesaid authorities the principles that can broadly be culled out are:

(i) There should be a liberal, pragmatic, justice- oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the

https://www.mhc.tn.gov.in/judis/ WA No.SR69382/2020 & CMP No.6960/2021

counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the

https://www.mhc.tn.gov.in/judis/ WA No.SR69382/2020 & CMP No.6960/2021

paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."

6. In the said judgment, the Hon'ble Apex Court also added

the following guidelines :

“16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

d) The increasing tendency to perceive delay as a non-

serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.”

https://www.mhc.tn.gov.in/judis/ WA No.SR69382/2020 & CMP No.6960/2021

7. Applying the above guidelines, we are of the view that

the appellants did not assign convincing reasons to condone the

inordinate delay of 665 days in filing the appeal and the condonation

of delay application deserves to be dismissed.

8. Accordingly, C.M.P.No.6960 of 2021 is dismissed and the

writ appeal is rejected at the S.R. stage. No costs.

(P.S.N., J.) (K.R., J.) 02.08.2021 Index : Yes / No Internet: Yes gg

1. The Managing Director, Tamil Nadu Water Supply and Drainage Board, No.31, Kamarajar Salai, Chepauk, Chennai-600 005.

2. The Deputy Chief Engineer, Tamilnadu Water Supply and Drainage Board, Office of the Chief Engineer, Northern Region, Vellore-6.

https://www.mhc.tn.gov.in/judis/ WA No.SR69382/2020 & CMP No.6960/2021

PUSHPA SATHYANARAYANA, J.