The Deputy Director (Recovery) vs M/S.Thirumurthy Mills
2021 Latest Caselaw 5616 Mad

                                                                          C.M.P.No.6865 of 2020 in
                                                                        C.M.A.SR.No.13915 of 2019

                                IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 03.03.2021

                                                     CORAM:

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                              C.M.P.No.6865 of 2020
                                                       in
                                            C.M.A.SR.No.13915 of 2019

                     The Deputy Director (Recovery),
                     The Employees State Insurance Corporation,
                     No.1897, Trichy Road,
                     Coimbatore-641 045.                                      .. Petitioner
                                                      Vs.

                     M/s.Thirumurthy Mills,
                     rep.by its Joint Managing Director,
                     Mr.V.Rajkumar, Udumalapet.                               .. Respondent

                     PRAYER: C.M.P.No.6865 of 2020 is filed under Section 82(3) of ESI
                     Act, to condone the delay of 300 days in filing the above Civil
                     Miscellaneous Appeal, against the order and judgment passed in EIOP
                     No.6 of 2011 dated 31.01.2018 on the file of the Employees Insurance
                     Court(Principal Labour Court), Coimbatore.

                     C.M.A.SR.No.13915 of 2019 is filed under Section 82(2) of the
                     Employees Insurance Act, against the order and judgment passed in EIOP
                     No.6 of 2011 dated 31.01.2018 on the file of the Employees Insurance
                     Court(Principal Labour Court), Coimbatore.


                                   For Petitioners   : Mr.G.Bharadwaj
                                   For Respondent    :M/s.C.Manohar Gupta


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                                                                             C.M.P.No.6865 of 2020 in
                                                                           C.M.A.SR.No.13915 of 2019

                                                      for M/s.Gupta & Ravi

                                                      ORDER

The Civil Miscellaneous Petition on hand is filed under Section

82(3) of ESI Act, to condone the delay of 300 days in filing the above

Civil Miscellaneous Appeal, against the order and judgment passed in

EIOP No.6 of 2011 dated 31.01.2018 on the file of the Employees

Insurance Court(Principal Labour Court), Coimbatore.

2. The Deputy Director (Recovery), The Employees State

Insurance Corporation is the petitioner and the petition is filed to condone

the delay of 300 days in filing the Civil Miscellaneous Appeal.

3.The sole reason stated in the affidavit filed in support of the

petition is that the appellant had forwarded the order passed in

E.S.I.O.P.No.6 of 2011 to the Regional Office, ESI Corporation and there

was an administrative delay in granting approval. Mere administrative

delay cannot be a ground to condone the enormous delay of 300 days.

Any such delay must be substantiated with an acceptable reason. Thus,

the authorities are expected to be vigilant in preferring the appeal within

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the period of limitation. The Authorities cannot simply say that there was

a delay of 300 days in filing the appeal on the ground of administrative

delay. In other words, unsubstantiated administrative delay cannot be an

acceptable ground for the purpose of condoning the huge delay.

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 Petitioner 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

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the public authorities are having lack of sincerity and committing

dereliction on duty. These negligence and dereliction of duty are serious

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

300 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

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reasons, delay can be condoned by exercising the power of discretion.

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

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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

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

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condoning the delay in a casual manner. Thus, while exercising the power

of discretion, Courts are expected to be cautious and the reasons 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

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clearly and truthfully explained in the affidavit filed in support of the

miscellaneous petition. In the present case, reading of the affidavit reveals

that there is no valid and acceptable reason for the purpose of condoning

the enormous delay of 300 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 petitioner for

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condoning the long delay of 300 days are neither candid nor convincing

and consequently, the Civil Miscellaneous Petition in C.M.P.No.6865 of

2020 stands dismissed and consequently, C.M.A.SR.No.13915 of 2019 is

rejected at the SR Stage itself. No costs.

03.03.2021 ssb Index:Yes Speaking order

To

1.The Employees State Insurance Court, (Principal Labour Court), Coimbatore.

2.The Sub Assistant Registrar, A.E.Section, High Court, Madras.

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S.M.SUBRAMANIAM, J.

ssb

C.M.P.No.6865 of 2020 in C.M.A.SR.No.13915 of 2019

03.03.2021

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