State Of Odisha And Others vs Sk.Masum Ali And Another
2021 Latest Caselaw 8836 Ori

                     IN THE HIGH COURT OF ORISSA AT CUTTACK


                                   W.P.(C) No.10704 of 2014


                 State of Odisha and others               ....         Petitioners
                                          Mr. D.R. Mohapatra, Standing Counsel
                                              for the School and Mass Education

                                             -versus-

                 Sk.Masum Ali and another                 .... Opposite Parties
                                                   Mr. B.P.Tripathy-1, Advocate



                            CORAM:
                            THE CHIEF JUSTICE
                            JUSTICE B. P. ROUTRAY


                                          ORDER

25.08.2021

Order No.

23. 1. The present writ petition by the State of Odisha challenging an order dated 12th July, 2011 of the Odisha Administrative Tribunal (OAT) in O.A.No.1937(C) of 2007 was filed on 11th June, 2014 more than nearly three years thereafter.

2. The explanation offered for the delay contained in para-13 of the petition, which reads as under:

"That it is most respectfully submitted that the order was passed by learned Tribunal on 12.07.2011 which was received by petitioner No.3 on 17.08.2011 and thereafter petitioner No.3 vide its letter No.7809 dated 24.08.2011 intimated to petitioner No.2 issue

immediate instruction for compliance of the order of the learned Tribunal. Thereafter petitioners No.1 vide its UOI No.1918 dtd.29.06.2013 sought for advice from the Law Department. After carefully considering the Law Department decided to file writ petition before the Hon'ble High Court and accordingly a letter was sent by the Law Department to Administrative Department on 28.10.2013. That the Administrative Department i.e. petitioner No.1 in their letter dtd.01.11.2013 had directed to District Education Officer, Jajpur to file a writ petition before the Hon'ble Court challenging the order dtd.12.07.2011 passed by the learned Tribunal in O.A.No.1937(C ) of 2007 before the Hon'ble High Court.

3. Owing to the settled position of law, 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.

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 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".

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 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."

4. 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)

(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)

5. As far as the present petition is concerned, the explanation offered in para-13 of the petition is unconvincing and unsatisfactory and cannot be accepted.

6. In the counter affidavit filed on behalf of Opposite Party No.1, it is mentioned how the direction for regularization has been implemented but the corresponding arrears of wages are yet to be paid.

7. The interim order passed by this Court is vacated. The petition is dismissed on the ground of delay and laches. Steps should be now taken by the State to comply with the other portions of the impugned order of the O.A.T. and pay the arrears of wages positively within four weeks from today. If this direction is not complied with, it will be open to Opposite Party No.1 to take appropriate steps in accordance with law. The questions of law

raised in the petition are left open for decision in some other appropriate case.

8. An urgent certified copy of this order be issued as per Rules.

(Dr. S. Muralidhar) Chief Justice

( B.P. Routray) Judge

C.R. Biswal