Orissa High Court

State Of Odisha And Others vs Niranjan Mishra (Retd. Dpo) And on 2 August, 2021

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                            W.P.(C) No.15642 of 2021

            State of Odisha and others             ....          Petitioners
                                                   Mr. M.S. Sahoo, A.G.A.
                                     -versus-
            Niranjan Mishra (Retd. DPO) and ....       Opposite Parties
            others
                                         Mr. Basudev Mishra, Advocate

                      CORAM:
                      THE CHIEF JUSTICE
                      JUSTICE B.P. ROUTRAY


                                     ORDER

02.08.2021 Order No.

03. 1. On the previous date i.e. 3rd May 2021, the following order was passed in the present petition:

"1. This matter is taken up by video conferencing mode.

2. It is seen that in the impugned order, the Tribunal has followed its earlier order dated 29th April 2019 in O.A. No.1506 of 2019 and has noted that the Government has implemented that order.

3. Mr. M.S. Sahoo, learned Additional Government Advocate for the Petitioners states that he will obtain instructions on whether the said order was challenged.

4. At his request, list on 2nd August 2021.

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5. As the restrictions due to resurgence of COVID- 19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021."

2. Learned counsel for Opposite Party No.1 draws attention of this Court to Ground-D of the Grounds in the present writ petition where the Petitioners have averred as under:

"D. For that the learned Tribunal has relied upon an order passed in OA No.1506 of 2019 while passing the impugned order, though the same is not similar to the present case. Be that as it may in the said order the learned Tribunal has directed to grant the Grade Pay of Rs.5400/- and also make pay fixation as per rules, but has not specified any date from which the Grade pay of Rs.5400/- is to be allowed. Therefore, the petitioners complied the same as per prevailing Rules. But, in the instance case, the learned Tribunal has directed to grant 2nd and 3rd RACP with Grade Pay of Rs.5400/- & Rs.6600/- respectively w.e.f. 1.1.2013 though on the said date neither the applicant had completed 30 years of services not the said Grade Pay was available for the post of DPO. Hence the impugned order is perverse and liable to be set aside."

3. As correctly pointed out by learned counsel appearing for Opposite Party No.1 that there is an unequivocal admission in

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the above Ground by the Petitioners that the order passed by the Tribunal in O.A. No.1506 of 2019 has been implemented.

4. It is then contended by learned Additional Government Advocate for the Petitioners that the facts of O.A. No.1506 of 2019 were different from the facts of the present case.

5. If that is the case then, the Petitioners are obliged to explain the inordinate delay in approaching this Court for relief. The impugned order of the Tribunal is dated 25th July 2019 whereas the present petition has been filed only on 26th April 2021 i.e. about two years thereafter.

6. The only explanation offered for the delay is in paragraph 5 of the present petition which reads as under:

"5. That, after receipt of the impugned order dated 25.7.2019 the matter was examined by the petitioners, opinion was sought for from the Law Department and after getting opinion from Law Department the petitioners decided to file the present writ petition. Accordingly, office of the learned Advocate General was contacted for filing of the writ petition, certified copy of the order was applied for and after due discussion with the learned Addl. Government Advocate, writ petition was drafted and presented before this Hon'ble Court without further delay. Hence there is no deliberate laches in filing the writ application and

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the delay is bonafide and due to procedural compliance so also due to wide spread of COVID-

19."

7. The Supreme Court has in numerous decisions in the recent past taken a strict view and has expressly rejected the explanation where only for administrative reasons, appeals and petitions are filed by the State belatedly.

8. The Supreme Court has made it clear in a series of judgments, including the recent decision in The State of Madhya Pradesh v. Bherulal 2020 SCC OnLine SC 849, that there have to be proper and convincing reasons for the delay in the state or its entities filing appeals or petitions. In the said decision the Supreme Court observed as under:

"2. We are constrained to pen down a detailed order as it appears that all our counseling to Government and Government authorities have fallen on deaf ears i.e., the Supreme Court of India cannot be a place for the 2 Governments to walk in when they choose ignoring the period of limitation prescribed. We have raised the issue that if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the Statute subsists, the appeals/petitions have to be filed as per the Statues prescribed.

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3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government (Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors. (1987) 2 SCC 107). This position is more than elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors. v.Living Media India Ltd. & Anr. (2012) 3 SCC 563 where the Court observed as under:

"12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in 3 this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the

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modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years 4 due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay."

Eight years hence the judgment is still unheeded!

4. A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only "due to unavailability of the documents and the process of arranging the documents". In paragraph 4 a reference has been made to "bureaucratic process works, it is inadvertent that delay occurs".

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5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the 5 period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.

6. We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to 6 address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.

7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are

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such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible.

8. Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner-State of Rs.25,000/- (Rupees twenty five thousand) to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time.

9. The special leave petition is dismissed as time barred in terms aforesaid."

9. The Supreme Court has recently in a series of matters reiterated that the explanation usually offered by the State and its entities for the delay on account of administrative exigencies should not be accepted unless they are shown to be justified. A sampling of such orders is as under:

(i) Order dated 13th January 2021 in SLP No.17559 of 2020 (State of Gujarat v. Tushar Jagdish Chandra Vyas & Anr.)

(ii) Order dated 22nd January 2021 in SLP No.11989 of 2020 (The Commissioner of Public Instruction & Ors. v. Shamshuddin)

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(iii) Order dated 22nd January 2021 in SLP No.25743 of 2020 (State of Uttar Pradesh & Ors v. Sabha Narain & Ors.)

(iv) Order dated 4th February 2021 in SLP No.19846 of 2020 (Union of India v. Central Tibetan Schools Admin & Ors)

(v) Order dated 11th January 2021 in SLP No.22605 of 2020 (The State of Odisha & Ors v. Sunanda Mahakuda)

10. In the present case, there is no convincing explanation for the delay in approaching the Court and accordingly, the Court declines to entertain the present writ petition. Consequently, the writ petition is dismissed on the ground of delay and laches.