Madras High Court
Secretary To Government vs B.Kalitheerthan on 11 March, 2022
MP.No.1 of 2015
in
W.A.SR.No.98814 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11.03.2022
Coram :
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
MP.No.1 of 2015
in
W.A. SR.No.98814 of 2014
Secretary to Government
Home (Pol.IV) Department,
Fort St.George,
Chennai – 9. ... Petitioner
Vs.
B.Kalitheerthan,
Inspector of Police,
Kallakurichi P.S.
Villupuram District,
Now Assistant Commissioner of Police,
Thirumangalam Range, West Zone. ... Respondent
Prayer: This Civil Miscellaneous Petition filed under Section 5 of the
Limitation Act praying to condone the delay of 1832 days in filing the above
writ appeal against the order dated 14.10.2009 made in W.P.No.13541 of 2007.
For Petitioner : Mrs.V.Yamuna Devi
Special Government Pleader
For Respondent : Mr.Ravi Shanmugam
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MP.No.1 of 2015
in
W.A.SR.No.98814 of 2014
ORDER
This Miscellaneous Petition has been filed to condone the delay of 1832
days in filing the above writ appeal against the order dated 14.10.2009 made in
W.P.No.13541 of 2007.
2. In the affidavit it has been stated that the Government Pleader has
originally informed by letter dated 23.12.2009 that it is not a fit case to prefer
an appeal and thereafter yet another information was received on 02.09.2010 to
prefer an appeal based on the Government Pleader. Subsequently revised
opinion which was communicated on 25.01.2011, it has been decided to prefer
an appeal. The issue revolves around Rule 15 A of the Tamil Nadu Police
Subordinate Discipline and Appeal rules 1955.
3. Learned counsel for the respondent/writ petitioner vehemently opposed
this petition, stating that the delay is extraordinary and the State has not
properly explained the delay of 1832 days in filing the appeal. Absolutely, there
are no bonafide reasons made out in the petition for the delay of 1832 days.
4. Heard both sides.
5. A reading of the order of the learned Single Judge even on merits the
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in
W.A.SR.No.98814 of 2014
word "OR" cannot be read as "AND" and finding of the learned single Judge as
there cannot be two autorities as it amount to two authorities it is the contention
of the petitioner herein is accepted more than one will be having the powers to
pass orders. For the sake of convenience Para No.16 & 17 is extracted below.
16. I have considered the submissions made on either side.
The submissions of the learned counsel for the petitioner are well
founded. The learned counsel for the petitioner is correct in his
submissions that once the Head of the Department exercsed its suo
motu power of review under Rule 15-A(1) (II) of the Rules,
thereafter the suo motu power of review is not available to the
Government, under the same rule 15-A(1)(i) of the Rules. As
rightly pointed out by the learned counsel for the petitioner, the
word “”OR” alone is used in Rule 15-A (1) of the Rules, instead of
ÄND”. If the power of the respondent to inovke Rule 15-A(1)(i) of
the Rules is accepted, even after the same power of review is
exercised by the Head of the Department under Rule 15-A(1) of the
Rules, then it makes no sense for using the word ÖR” in the Rules.
I am also in entire agreement with the submission made by the
learned counsel for the petitioner that the word “OR” is used with
the laudable objective of the exercises of the power for one time
and thereafter the power is dried up. The analogy drawn by the
learned counsel for the petitioner by reading Rules 15-A(3) and 15-
A(4) deserves acceptance. The Rule permits the delinquent
employee to prefer review petition either of the authorities. If the
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review application of the delinquent has reached finality in view of
passing of an order by an authority, thereafter the review power
under Rule 15-A(1) before different authority cannot be invoked by
the delinquent employee. On the same analogy, the respondent also
cannot invoke its suo motu power, once the Head of the
Department had exercised the power of review, under Rule 15-
A(1)(ii).
17. The judgment of the Tamil Nadu Administrative
Tribunal in K.Palanichamy Vs. State of Tamil Nadu and 4 others,
dated 14.11.2002 also squarely applies to the facts of this case.
Paragraph 5 of the said judgment, which is relevant to decide this
case, is extracted hereunder:
“5. Therefore, if the Head of the Department has already
taken a review, the State is precluded from taking further review.
This is only in consonance with the general principle underlying
the procedural law. There cannot be a review of review. Review is
provided only to prevent miscarriage of justice and therefore there
cannot be a review of review order. Moreover, either the State by
itself can review the order if all other authorities mentioned in
Rule 15-A failed to review and if review is called for, for rendering
justice. If the Head of the Department has done it, the State is
precluded from again reviewing the order of the reviewing
authority namely the Head of the Department. Moreover Rule
15(A) (3) and (4) provides that no application for review shall be
preferred more than once in respect of the same order. A
delinquent Government servant who has preferred a review
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against the punishment to one of the authorities specified in Rule
15-A, canot prefer a second review to the other authority
mentioned in Rule 15-A. So, even delinquent Government Servant
cannot prefer two reviews which only stands to the common sense
and reason. The authorities also cannot undertake two review of
the same order. Therefore, the second review by the State
Government after the original order has been reviewed by the
Head of the Department will not lie”.
In view of the aforesaid conclusions, the impugned order is liable
to be interfered with".
6. It is apposite to point out that even if the delay is enormous, if there is
any justifiable ground, the delay has to be condoned. Assuming that, the delay
is very small and the reasons are not germane, the Court cannot condone the
same. In a similar circumstance, a Division Bench of this Court (SVNJ & MVJ),
by an order dated 15.02.2018, in the case of M/s.Ruskim Sea Foods Limited
vs. M/s.Evergreen Sea Foods Pvt. Ltd., reported in MANU/TN/0876/2018,
which were filed to condone the delay of 765 days in preferring the Appeal,
dismissed the said Petitions. Relevant Paragraph of the said decision is
extracted hereunder:
“32. Ordinarily, the 'Condonation of Delay' is a matter of
discretion to be exercised by the Concerned Court. Also, it is true
that the length and breadth of delay is not relevant, but the
acceptance of explanation can only be a relevant criterion for the
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MP.No.1 of 2015
in
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concerned Court to deal with / condone the aspect of 'Condonation
of Delay'. However, in this regard, the Petitioner / concerned
litigant is to offer / ascribe sufficient reasons or project sufficient
cause or good cause to condone the delay with a view to enable the
Concerned Court to take a liberal view with a view to secure the
ends of justice.
7. While dealing with yet another similar issue of condoning a huge delay,
a Division Bench of this Court, has observed as follows:
“4. The Court, in exercising discretion, particularly in
these types of Petitions, has to see the conduct, behaviour and
attitude of a party relating to its inaction or negligence. The
above factors are relevant to be taken into consideration as the
fundamental principle is that 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. There is an increasing tendency to perceive delay even
in a non-serious matter. Hence, the delay due to nonchalant
attitude should be curbed at the initial stage itself.
5 . Considering the above aspects and further the Affidavit
filed for condoning the delay, did not contain any details as to
how the delay of 1860 days had occurred and that no plausible
and proper explanation was assigned for each and every day's
delay, we are of the view that it is a fit case where the discretion
cannot be exercised for condonation of the delay. Accordingly,
the Miscellaneous Petition seeking condonation of 1860 days
delay in preferring the Appeal is dismissed. Consequently, the
Writ Appeal also stands dismissed.”
8. The Hon'ble Supreme Court in a recent judgment in the case of Majji
Sannemma @ Sanyasirao vs Reddy Sridevi and others, reported in
MANU/SC/1269/2021, has held as follows:
“7.3 In the case of Pundlik Jalam Patil (supra), it is
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observed as under:-
“The laws of limitation are founded on public policy.
Statutes of limitation are sometimes described as “statutes of
peace”. An unlimited and perpetual threat of limitation
creates insecurity and uncertainty; some kind of limitation is
essential for public order. The principle is based on the
maxim “interest reipublicae ut sit finis litium”, that is, the
interest of the State requires that there should be end to
litigation but at the same time laws of limitation are a means
to ensure private justice suppressing fraud and perjury,
quickening diligence and preventing oppression. 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.” 7.4 In
the case of Basawaraj (supra), it is observed and held by this
Court that the discretion to condone the delay has to be
exercised judiciously based on facts and circumstances of
each case. It is further observed that the expression
“sufficient cause” cannot be liberally interpreted if
negligence, inaction or lack of bona fides is attributed to the
party. It is further observed that even though limitation may
harshly affect rights of a party but it has to be applied with
all its rigour when prescribed by statute. It is further
observed that in case a party has acted with negligence, lack
of bona fides or there is inaction then there cannot be any
justified ground for condoning the delay even by imposing
conditions. It is observed that each application for
condonation of delay has to be decided within the
framework laid down by this Court. It is further observed
that if courts start condoning delay where no sufficient cause
is made out by imposing conditions then that would amount
to violation of statutory principles and showing utter
disregard to legislature. 7.5 In the case of Pundlik Jalam
Patil (supra), it is observed by this Court that the court
cannot enquire into belated and stale claims on the ground of
equity. Delay defeats equity. The Courts help those who are
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vigilant and “do not slumber over their rights”.
8. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and considering the
averments in the application for condonation of delay, we are of
the opinion that as such no explanation much less a sufficient or a
satisfactory explanation had been offered by respondent Nos.1 and
2 herein – appellants before the High Court for condonation of
huge delay of 1011 days in preferring the Second Appeal. The
High Court is not at all justified in exercising its discretion to
condone such a huge delay. The High Court has not exercised
the discretion judiciously. The reasoning given by the High
Court while condoning huge delay of 1011 days is not germane.
Therefore, the High Court has erred in condoning the huge
delay of 1011 days in preferring the appeal by respondent
Nos.1 and 2 herein – original defendants. Impugned order
passed by the High Court is unsustainable both, on law as well
as on facts.
9. In view of the above and for the reasons stated above, the
present Appeal is Allowed. The impugned order dated 16.09.2021
passed by the High Court condoning the delay of 1011 days in
preferring the Second Appeal by respondent Nos.1 and 2 herein is
hereby quashed and set aside. Consequently, Second Appeal
No.331 of 2021 preferred by respondent Nos.1 and 2 herein
stands dismissed on the ground of delay. The present Appeal is
accordingly Allowed. However, there shall be no order as to
costs."
9. For all the reasons stated above, we are not inclined to condone the
delay. Thus, the Miscellaneous Petition is dismissed. Consequently, the
connected Writ Appeal in SR stage stands rejected. No costs.
(S.V.N., J.) (M.S.Q.,
J.)
11.03.2022
Index: Yes/No
Speaking (or) Non-speaking Order
https://www.mhc.tn.gov.in/judis
MP.No.1 of 2015
in
W.A.SR.No.98814 of 2014
dpq
S.VAIDYANATHAN, J.
and
MOHAMMED SHAFFIQ, J.
dpq
MP.No.1 of 2015
in
W.A. SR.No.98814 of 2014
https://www.mhc.tn.gov.in/judis
MP.No.1 of 2015
in
W.A.SR.No.98814 of 2014
11.03.2022
https://www.mhc.tn.gov.in/judis
