Madras High Court
The Deputy Director vs Ind Fashions Exports Pvt Limited on 6 January, 2021
C.M.P.No.9446 of 2018 in
C.M.A.SR.No.102134 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.P.No.9446 of 2018
in
C.M.A.SR.No.102134 of 2017
1.The Deputy Director,
ESI Corporation,
143, Sterling Road,
Nungambakkam High Road,
Chennai – 600 034.
2.The Recovery Officer,
ESI Corporation,
143, Sterling Road,
Nungambakkam High Road,
Chennai – 600 034. .. Petitioners
Vs.
Ind Fashions Exports Pvt Limited,
No.108, Nelson Manickam Road,
Aminjikarai, Chennai – 600 029. .. Respondent
PRAYER: C.M.P.No.9446 of 2018 is filed under Section 82(4) of ESI
Act r/w Section 5 of the Limitation Act, to condone the delay of 744 days
in filing the above Civil Miscellaneous Appeal, against the order and
judgment passed in EIOP No.98 of 2008 dated 14.09.2015 by the
Employees State Insurance Court(Principal Labour Court), Chennai.
1/10
https://www.mhc.tn.gov.in/judis/
C.M.P.No.9446 of 2018 in
C.M.A.SR.No.102134 of 2017
C.M.A.SR.No.102134 of 2017 is filed under Section 82 of the
Employees Insurance Act, against the order and judgment passed in EIOP
No.98 of 2008 dated 14.09.2015 by the Employees State Insurance
Court(Principal Labour Court), Chennai.
For Petitioners : Mr.S.P.Srinivasan
For Respondent : No appearance
ORDER
The Civil Miscellaneous Petition on hand is filed under Section
82(4) of ESI Act r/w Section 5 of the Limitation Act, to condone the
delay of 744 days in filing the Civil Miscellaneous Appeal, against the
order and judgment passed in EIOP No.98 of 2008 dated 14.09.2015 by
the Employees State Insurance Court(Principal Labour Court), Chennai.
2. The Deputy Director and the Recovery Officer, ESI Corporation
are the petitioners and the petition is filed to condone the delay of 744
days in filing the Civil Miscellaneous Appeal.
3. The only reason stated in the affidavit filed in support of this
miscellaneous petition is that there is an administrative delay. Mere
administrative delay is insufficient to condone the enormous delay of 744
days in filing the appeal. Except the above reason, no other reason has
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C.M.P.No.9446 of 2018 in
C.M.A.SR.No.102134 of 2017
been stated for condoning the delay of 744 days in filing the above
appeal.
4. This Court has to consider whether such a long administrative
delay can be condoned in a mechanical manner or not. Undoubtedly,
there is a possibility of some administrative delay in certain unavoidable
circumstances. However, such administrative delay, if exceeds and the
delay is enormous, then it cannot be condoned in a mechanical manner.
The Petitioners being a public authority, they are bound to be vigilant and
prompt in performing their duties and responsibilities. Small amount of
delay can be condoned by taking a lenient view. However, long delay
cannot be condoned in the absence of any valid and acceptable reasons.
5. In recent years, these public authorities are found to be
frequently negligent and committing dereliction of duty in respect of
dealing with such appeals and other cases. There is a general trend that
the public authorities are having lack of sincerity and committing
dereliction on duty. These negligence and dereliction of duty are serious
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C.M.P.No.9446 of 2018 in
C.M.A.SR.No.102134 of 2017
misconducts and therefore, the higher authorities are bound to ensure that
the officials are performing their duties and responsibilities with utmost
care and with devotion to duty. Any such lapse or dereliction of duty is to
be enquired into properly and all appropriate actions are to be initiated to
ensure initiations of appropriate disciplinary proceedings. Therefore, the
authorities cannot approach the Court in a routine or mechanical manner
with a huge delay in filing an appeal. Every such delay is to be explained
in a proper manner and the Courts are also to ensure that unexplained
delay is not condoned in a routine manner.
6. Perusal of the affidavit shows that there is absolutely no
acceptable reason for the purpose of condoning the enormous delay of
744 days in filing the appeal. The reasons stated in the affidavit must be
convincing, enabling this Court to consider the condonation of delay.
Huge delay cannot be condoned in a routine manner. Law of Limitation
is substantive. Condonation of delay is an exception. Only on genuine
reasons, delay can be condoned by exercising the power of discretion.
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C.M.P.No.9446 of 2018 in
C.M.A.SR.No.102134 of 2017
7. Mechanical way of condoning delay is undoubtedly
impermissible. The condonation of delay can never be a mechanical
affair and the High Court cannot condone the delay in a routine manner.
Courts are bound to ensure that the reasons for condoning such delays
are recorded, so as to set out a precedent and to avoid mechanical way of
condonation of delay. When the law provides limitation for preferring an
appeal and the proviso clause as contemplates the power of discretion to
the Court to condone the delay, then such discretionary powers are to be
exercised judiciously and by recording reasons. It is not as if, the High
Courts can condone the delay in a routine manner, so as to dilute the law
of limitation as contemplated under the Statutes. Thus, in all cases, where
there is an enormous delay in filing an appeal, the Courts are bound to
ascertain the reasons and its genuinity and the acceptability of such
reasons. Every litigant is expected to prefer an appeal within the period
of limitation stipulated in the statute. On account of certain unavoidable
reasons, if the appeal is filed with some delay, then the Courts are vested
with the discretionary power to condone such a delay. Rule is to file an
appeal in time and condonation is an exception, which is to be exercised
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C.M.P.No.9446 of 2018 in
C.M.A.SR.No.102134 of 2017
discreetly and by recording reasons. Recording of reasons are of
paramount importance in order to maintain consistency in the matter of
condonation of delay.
8. Discretionary powers are expected to be exercised by the Courts
judiciously. Any reasonable delay or the reasons, which all are valid and
acceptable alone can form an opinion for exercising the power of
discretion in the matter of condonation of delay. Thus, uncondonable
delay cannot be condoned and what all are the condonable delay and the
reasons stated and its validity, which all are important, so as to exercise
the power of discretion. The very purpose and object of providing
discretionary powers to the Courts are to ensure that the justice is done in
an appropriate manner. Because of some genuine delay, the rights of the
litigants cannot be neutralized and they should not be deprived of remedy
from the Court of law. Therefore, the power of discretion, which is
provided with genuine intention, cannot be diluted nor be neutralized by
condoning the delay in a casual manner. Thus, while exercising the
power of discretion, Courts are expected to be cautious and the reasons
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C.M.P.No.9446 of 2018 in
C.M.A.SR.No.102134 of 2017
for condonation must be recorded and in the absence of recording any
reasons, the Courts are not considering the substantive law of limitation.
Therefore, the law must prevail in all circumstances and discretion must
be exercised discreetly and with caution.
9. Uncondonable delay cannot be condoned. Law expects that
every such delay is to be explained. Unexplained delay cannot be
condoned. Such unexplained delay is to be construed as uncondonable.
Thus, delay under what circumstances, would be condonable is the
relevant point to be considered by the Courts, while condoning such
enormous delay.
10. Parties are expected to file their respective appeals within the
period of limitation stipulated in the statute. Undoubtedly, certain
unforeseen circumstances may be the reason for delay. However, such
unforeseen circumstances or reasons, which all are genuine, must be
clearly and truthfully explained in the affidavit filed in support of the
miscellaneous petition. In the present case, reading of the affidavit
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C.M.P.No.9446 of 2018 in
C.M.A.SR.No.102134 of 2017
reveals that there is no valid and acceptable reason for the purpose of
condoning the enormous delay of 744 days in filing an appeal. In the
event of condoning such a long delay, undoubtedly, the same will set a
wrong precedent and every such delay is to be condoned in other
circumstances. Therefore, in the absence of any valid reasons, the Courts
would not condone such an enormous delay. Undoubtedly, meagre delay
can be condoned by taking a lenient view. Even to condone such a small
delay, Court has to find out, whether there is any sensible reason for such
delay. Therefore, the Courts have to adopt a liberal approach only in
small delays and certainly not in the cases of enormous delay. Thus, this
Court has no hesitation in arriving a conclusion that the reasons stated in
the affidavit filed in support of the miscellaneous petition are neither
candid nor convincing and therefore, the delay is to be construed as
uncondonable.
11. In view of the reasons stated above, this Court has no
hesitation in arriving a conclusion that the reasons stated by the
petitioners for condoning the long delay of 744 days are neither candid
nor convincing and consequently, the Civil Miscellaneous Petition in
https://www.mhc.tn.gov.in/judis/
C.M.P.No.9446 of 2018 in
C.M.A.SR.No.102134 of 2017
C.M.P.No.9446 of 2018 stands dismissed and consequently,
C.M.A.SR.No.102134 of 2017 is rejected at the SR Stage itself. No costs.
06.01.2021
Kak
Index:Yes
Speaking order
To
1.The Employees State Insurance Court,
(Principal Labour Court), Chennai.
2.The Sub Assistant Registrar,
A.E.Section,
High Court, Madras.
S.M.SUBRAMANIAM, J.
https://www.mhc.tn.gov.in/judis/
C.M.P.No.9446 of 2018 in
C.M.A.SR.No.102134 of 2017
Kak
C.M.P.No.9446 of 2018
in
C.M.A.SR.No.102134 of 2017
06.01.2021
https://www.mhc.tn.gov.in/judis/
