Orissa High Court
State Of Odisha And Others vs Md. Motiullah on 6 May, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
WA No.573 of 2025
State of Odisha and others .... Appellants
Mr. Saswat Das, Additional Government Advocate
-versus-
Md. Motiullah .... Respondent
Mr. Biren Sankar Tripathy, Advocate
CORAM:
THE HON'BLE THE CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 06.05.2025
I.A. No.1390 of 2025 and W.A. No.573 of 2025
02. This matter is taken up through Hybrid mode.
2. The appellants have filed the Interlocutory Application, i.e., I.A.
No.1390 of 2025 with a prayer to condone the delay of 166 days in
preferring intra-Court appeal directed against the judgment dated
23.08.2024 rendered by learned Single Bench of this Court in W.P.(C)
No.20442 of 2012, wherein and whereby the Director, Secondary
Education and Inspectors of Schools of Bhadrak and Jajpur are directed
to pass necessary orders to release the arrear salary of the petitioner
(respondent herein) for the period from 01.04.1993 to 21.12.2010 by
fixing his pay treating him as a Trained Urdu Teacher.
3. As revealed from the petition, the Department of School and Mass
Education has taken a decision to file a writ appeal, considering that
heavy financial burden would ensue on the State Exchequer in case the
judgment, which interpreted the principle of "no work no pay" and
directed for payment to be made to the respondent from 01.04.1993 to
21.12.2010, even as the respondent did not function as Urdu Teacher.
There has been a delay in the process of consultation.
4. It is contended by Sri Saswat Das, learned Additional Government
Advocate submitted that since pertinent question of law arises in the
present case whether the Urdu Teacher is entitled for payment from
01.04.1993 to 21.12.2020, even though he has not actually worked as a
teacher based on the principle of "no work no pay", the writ appeal
deserves to be heard on its merit. It is submitted that due to
circumstances not within the control of the appellants, there occurred
non-deliberate delay of 166 days in filing the writ appeal.
4.1 Sri Das, learned Additional Government Advocate filed an
affidavit dated 03.05.2025 in support of the Interlocutory Application
by placing on record further facts explaining the delay. It is stated that
on receipt of judgment dated 23.08.2024 through the Odisha State
Workflow Automation System (OSWAS) portal on 11.09.2024, the
factual report was called for by the Director, Secondary Education,
Odisha by letter dated 13.09.2024 from the District Education Officer,
Jajpur and Bhadrak. On collection information, the District Education
Officer, Jajpur submitted factual report on 17.10.2026 and the District
Education Officer, Bhadrak submitted his report on 19.11.2024.
Thereafter, an exhaustive study of the record was undertaken by the
Department of School and Mass Education. Upon thorough perusal of
record and consideration of material available, a decision was
communicated to the Director, Secondary Education on 14.02.2025 for
approaching this Court by consulting the Office of the learned Advocate
General, Odisha. The authorized Officer contacted the Office of learned
Advocate General and after discussion, the file was entrusted to one of
the Law Officers to draft the writ appeal. Accordingly, after draft of the
writ appeal being vetted, the writ appeal has been filed on 07.03.2025.
Learned Additional Government Advocate fervently prayed to condone
the said delay.
5. No objection has been filed by Sri Biren Sankar Tripathy, learned
counsel though he entered appearance for respondent on 25.03.2025.
5.1 At the time of hearing of the petition, Sri Biren Sankar Tripathy,
learned counsel for the respondent relied on an order dated 16.07.2021
passed in W.P.(C) No.15763 of 2021 (State of Odisha and others vs.
Surama Manjari Das and others). He submitted that this Court in the
said case refused to condone the delay on the ground of delay and
laches. He further submitted that the said matter was carried before the
Hon'ble Supreme Court in SLP(C) Diary No(s).9259 of 2023 by the
State of Odisha, which came to be dismissed vide order dated
05.04.2023. He submitted that there has been delay and laches on the
part of the appellants. The I.A. is liable to be dismissed and this Court
may also dismiss the writ appeal.
6. Considered the submission advanced before this Court by counsel
for both sides.
7. Though the said Interlocutory Application did not contain certain
facts, an affidavit dated 03.05.2025 has been filed eliciting factual
details leading to delay which prevented the appellants in filing the writ
appeal. This Court takes note of the fact that the respondent has not
filed any objection but objected to condone the delay with vehemence.
Learned counsel for the respondent relied on a decision of this Court in
the case of State of Odisha and others vs. Surama Manjari Das and
others in W.P.(C) No.15763 of 2021 against which SLP(C) Diary
No(s).9259 of 2023 (State of Odisha and others vs. Surama Manjiri
Das and others) stood dismissed.
8. Perusal of the said orders, it is found from paragraph-3 of order
dated 16.07.2021 passed by this Court that there was delay of more than
two years in filing writ petition challenging the order of learned Odisha
Administrative Tribunal, Bhubaneswar passed in O.A. No.767 of 2019.
In such context, this Court dismissed the writ petition on the ground of
delay and laches there being no explanation.
9. At this juncture, it may be relevant to refer to the order dated
24.03.2025 passed by the Hon'ble Supreme Court in State of Odisha vs.
Artatran Mallick; SLP(Civil) Diary No.26274 of 2024, wherein the
Hon'ble Supreme Court taking note of aforesaid case of Surama
Manjari Das (supra), it was observed that the delay was not such that it
could be termed as gross delay or laches, which were "totally
attributable to the appellant". The Hon'ble Supreme Court was of the
opinion that the issue raised before this Court was required to be heard
on merit. The Hon'ble Supreme Court condoned the delay of 257 days
in filing the writ appeal by State.
10. In identical facts situation, this Court in the case of State of Odisha
vs. Dr. Ambuja Satpathy and another, WA No.806 of 2024 vide order
dated 02.05.2025, taking note of intra-departmental consultation and
also with the Law Officers of the Office of the learned Advocate
General leading to the filing of writ appeal, condoned delay of 495 days
by observing that the cause shown is comprehended within the meaning
of "sufficient case".
11. The judgment of the Apex Court rendered in State of Manipur and
others vs. Koting Lamkang, (2019) 10 SCC 408 has been relied upon by
the appellants, for the proposition that the Court should avoid the
injustice to be perpetrated upon the State and may condone the delay by
balancing the rights of the parties upon imposition of costs. In the said
report, there was a delay of 312 days in preferring regular first appeal
against decree passed for eviction of the Director General of Police and
the Commandant of 8th Battalion of the Manipur Rifles in respect of the
property which was situated in an area of strategic importance. The
appellant therein approached the wrong forum and invested 44 days in
pursuing the same which was also taken into consideration by the Apex
Court in bringing within the ambit of "sufficient cause" appearing under
Section 5 of the Limitation Act. On the conspectus of facts emerged
from the said report, the Apex Court taking into account that the
property is situated in an area of strategic importance and in the event a
right of appeal is denied on the anvil of limitation, it has a larger
impact. Precisely for such reason, the Court allowed the application for
condonation solely on the ground that the property was situated in the
strategically sensitive area involving the security of the country at large,
which would be evident from the following observation:-
"10. In the present matter, the delay to the extent of 44 days,
in moving before the wrong court was found to be
satisfactorily explained in the impugned judgment. As regards
the failure of the State to adequately explain the remaining
period of delay, our opinion is that the interest of justice would
be better served, if the appellants' challenge to the decree of
the trial court is allowed to be examined on merit, by the first
appellate court. If the merit of the defendant's RFA is not
permitted to be examined by the appellate court, the State will
have no opportunity to address their grievances before a
higher court. We may also observe that if consideration of the
RFA is not permitted on strategically sensitive case involving
security, in the ultimate analysis, the public interest is likely to
suffer. The first appeal should therefore be considered on
merit instead of the State being non-suited, on the ground of
delay."
12. It is no longer res integra that the Court while considering whether
a case of such nature is made out which would come within the ambit of
the expression "sufficient cause" taking into account the other relevant
factors including the larger impact that would cause on the vast section
of the society, the discretion may be exercised in condoning the delay.
The sufficiency of the cause cannot be squeezed within the
straightjacket formula nor should be used as an euclid's theorem, but
depends upon the nature of the explanation so offered and satisfaction
of the Court in constituting the sufficiency of cause.
13. In the recent judgment rendered in Pathapati Subba Reddy (Died)
by L.Rs. and others vs. The Special Deputy Collector (LA), 2024 INSC
286, the Apex Court highlighted the importance of Section 3 of the
Limitation Act in juxtaposition with the provisions contained under
Section 5 of the said Act. It is highlighted that in order to take a
decision under Section 5 of the said Act, the Court must also bear in
mind the necessity of incorporating Section 3 thereof. The Apex Court
held that both the sections should be harmonized in order to operate in
tandem and none of the aforesaid provisions should be permitted to
override the core of each other. The moment there is a delay in filing
the appeal, Section 3 of the Limitation Act is immediately attracted
although the power is conferred upon the Court to condone the delay by
invoking the powers enshrined in Section 5 of the said Act, subject,
however, to the sufficiency of the cause duly shown in the application
by the appellant. The enlightening observations from the above report,
is quoted as under:-
"26. On a harmonious consideration of the provisions of the
law, as aforesaid, and the law laid down by this Court, it is
evident that:
(i) Law of limitation is based upon public policy that there
should be an end to litigation by forfeiting the right to
remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or
availed of for a long time must come to an end or cease to
exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to be construed
in a strict sense whereas Section 5 has to be construed
liberally;
(iv) In order to advance substantial justice, though liberal
approach, justice-oriented approach or cause of substantial
justice may be kept in mind but the same cannot be used to
defeat the substantial law of limitation contained in Section
3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone
the delay if sufficient cause had been explained, but that
exercise of power is discretionary in nature and may not be
exercised even if sufficient cause is established for various
factors such as, where there is inordinate delay, negligence
and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it
does not mean that others are also entitled to the same
benefit if the court is not satisfied with the cause shown for
the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in
condoning the delay; and
(viii) Delay condonation application has to be decided on
the parameters laid down for condoning the delay and
condoning the delay for the reason that the conditions have
been imposed, tantamounts to disregarding the statutory
provision."
14. This Court is conscious that while condoning the delay the Court
may strike a balance between the rights of the parties and there is some
negligence attributable to the conduct of the litigant which was beyond
his control and can be compensated by imposing suitable costs.
15. As indicated hereinabove, the delay was beyond the control though
there appears to be some default on the part of the appellants. This
Court is satisfied that there is sufficient cause for which the appellants
were prevented from approaching this Court. Therefore, this Court is
inclined to condone the delay of 166 days in preferring the writ appeal
subject to deposit of costs of Rs.25,000/- (rupees twenty thousand) by
the appellants-State with the High Court Bar Association Advocates'
Welfare Fund, Cuttack within four weeks from date.
16. Accordingly, I.A. stands disposed of.
17. List this matter on 30.06.2025.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
Aswini
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal Assistant
(Secretary-in-Charge)
Reason: Authentication
Location: Orissa High Court,
Cuttack
Date: 08-May-2025 11:07:15
