Delhi High Court
Subhash Chand vs Mcd on 2 July, 2015
Author: Sunita Gupta
Bench: Sunita Gupta
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 2nd July, 2015
Review Petition No. 257/2015 and CM Nos. 8362-8363/2015 in
W.P.(C) 5861/2007
SUBHASH CHAND ..... Petitioner
Through: Mr. Rajiv Aggarwal and Mr. Sachin
Kumar, Advocates
versus
MCD ..... Respondent
Through: Mr. Digvijay Rai with Mr. Dhiraj
Kumar, Advocate for MCD
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
Review Petition No.257/2015, CM Nos. 8362/2015( (for condonation of delay in filing the review petition) & CM No. 8363/2015(for Stay of recovery proceedings)
1. Vide Review Petition No.257/2015, the respondent/applicant seeks review/recall of the order/judgment dated 21st April, 2011 passed by this Court in WP(C) No. 5861/2007. Vide CM No.8362/2015, condonation of delay of 1458 days in filing the review petition is sought under Section 5 of Limitation Act. Vide CM No.8363/2015, stay of recovery proceedings pursuant to aforesaid judgment is sought.
RP No. 257/2015 in WP(C) 5861/2007 Page 1 of 162. Before considering the applications in hand, it will be in the fitness of things to narrate the circumstances leading to the filing of the present applications.
3. Petitioner/non-applicant was employed with the respondent/applicant as chowkidar w.e.f. October 20, 1989. He was a muster roll monthly paid worker and he continued as such till February, 17, 1997 on which date his services were terminated. The petitioner raised an industrial dispute which was referred to the Labour Court. The Labour Court held that the services of the petitioner were illegally and unjustifiably terminated and a compensation to the tune of Rs.20,000/- was awarded to him. Feeling aggrieved, a writ petition under Article 226 and 227 of the Constitution of India for issuing a writ of certiorari for setting aside and quashing the award dated 4th May, 2006 was filed by the petitioner to the extent that he was denied the relief of full back wages and reinstatement. Vide order dated 21st April, 2011, by relying upon Ram Narain vs. Management of Delhi State Civil Supplies Corporation Ltd. being WP(C) No. 15089/2006 decided on 21 st March, 2007, the award of the labour Court dated 4th May, 2006 in so far as it granted the compensation to the petitioner to the tune of Rs.20,000/- was set aside and petitioner was held entitled to reinstatement in service with full consequential benefits.
4. The respondent/applicant seeks review of this order, inter alia, on the ground that the petitioner was engaged on purely casual basis RP No. 257/2015 in WP(C) 5861/2007 Page 2 of 16 as a daily wage chowkidar for a very short period on temporary basis and was removed from service on the ground of misconduct. He had no right to the post because his appointment is not in accordance with the constitutional scheme. This Court vide its judgment dated 21 st April, 2011, relied upon a judgment of which facts are different as in that case, the core issue was whether the workman had worked for 240 days in the year preceding his termination and further that there was violation of Section 25F of the Act. However, in the instant case, there is no dispute that the workman had worked for 240 days in the year preceding his termination and further that there was no compliance of Section 25F of the Act.
5. By placing reliance on BSNL vs. Bhurumal, AIR 2014 SC 1188, it was submitted that the relief of reinstatement with full back wages could not have been granted by the Single Judge of this Court and in case the Court was of the view that the compensation awarded to the petitioner was meagre, the same at best could have been enhanced. Under the circumstances, it is submitted that since there is apparent error on the face of the record, as such, the order is liable to be reviewed.
6. It is further submitted that the delay has occurred on account of the fact that earlier the matter pertained to Municipal Corporation of Delhi and the file moved from one department to another seeking to challenge the order. After the bifurcation of MCD, the movement of the file was stopped. The petitioner approached the Assistant Labour Commissioner, Nimri Colony for relief in the year 2014 for RP No. 257/2015 in WP(C) 5861/2007 Page 3 of 16 regularization on the post of Chowkidar. Thereafter, the Law Department decided to file a review petition against the order dated 21st April, 2011 and the same was filed. Inquiry Committee has also been constituted to look into the matter for fixing the responsibility of defaulting officials/officers for not filing an appeal within time. In case the delay is not condoned, the respondent/applicant shall suffer great loss and injury.
7. The application is vehemently opposed by the learned counsel for the petitioner/non-applicant on the ground that the delay can be condoned only if sufficient reasons are assigned. Delay cannot be condoned on the vague, frivolous and flimsy grounds. There is gross negligence on the part of the Department which has not been satisfactorily explained. Under the circumstances, there is no ground for condonation of delay in filing the application.
8. It is further submitted that even the application for review of the impugned order is without merit inasmuch as:-
(i) the respondent is guilty of suppressing material facts as in the entire applications, it is not disclosed that the petitioner has already been paid back wages in terms of the impugned order as for the period of 17th February, 1997 to 30th April, 2011, a sum of Rs.05,04,000/-
approx. was paid. Thereafter, w.e.f. 1st May, 2011 to 31st December, 2011, a sum of Rs.52,494/- was paid and thereafter w.e.f. 1st January, 2012 to 30th September, 2014 a sum of Rs.2,42,502/- has been deposited with the Collector. Due to suppression of material facts, the respondent is not entitled for the discretionary relief. Reliance was RP No. 257/2015 in WP(C) 5861/2007 Page 4 of 16 placed on G.M. Haryana Roadways vs. Jai Bhagwan and Anr., (2008) 4 SCC 127.
(ii) There is no ground for review of the order. If the respondent was aggrieved by the order, the appropriate remedy available to the Department was to prefer Letters Patent Appeal. This Court is not sitting in appeal over the order passed by the Single Judge and in fact filing of this application is an abuse of process of law.
(iii) Even on merits, there is no ground for review of the order, inasmuch as, once the service of the workman was illegally terminated and there was violation of Section 25F of the Act then the petitioner was entitled to reinstatement with full back wages. Reliance was placed on the latest pronouncement of Hon'ble Supreme Court of India in Jasmer Singh vs. State of Haryana and Anr. , Civil Appeal No. 346/2015.
As such, it was submitted that the applications are liable to be dismissed with costs.
9. Firstly, coming to the application for condonation of delay, a perusal of the application goes to show that the respondent/applicant seeks to condone the delay of 1458 days on the ground that after the passing of the order dated 21st April, 2011, vide note dated 23rd June, 2011, concerned official detailed the facts and circumstances of the case and sought an opinion from the Law Department as to the future course of action in the matter. On 8th July, 2011, the counsel for MCD gave an opinion that the order should be challenged. On 2nd August, 2011, the concerned officer decided that the case is fit for challenge and referred the file to the Law Department for further RP No. 257/2015 in WP(C) 5861/2007 Page 5 of 16 course of action. Vide note dated 7th September, 2011, the Law Department directed the concerned Department to provide complete documents. Thereafter, the file moved from one department to another seeking complete documents. On 5th March, 2012, the concerned dealing made a note that the case file was not available with him as the matter was contested at the Head Quarter level and not the zonal level. After the bifurcation of MCD, further movement of the file was stalled. The petitioner approached the Assistant Labour Commissioner, Nimri Colony for regularization to the post of Chowkidar with retrospective effect from the initial date of his joining, i.e., 24th October, 1989 and to pay him entire difference of salary for the period from 24th October, 1989 onwards. On 8th July, 2013, the concerned official met the advocate for preparing written statement to the claim petition pending before the Labour Court who informed the official that the earlier court file would be required for filing a reply. On 8th August, 2013, it was reported that the case file was missing from the almirah and thereafter the file moved from one table to another. Finally on 19th January, 2015, the Law Department decided to file a review petition. The counsel was engaged on 20th January, 2015 to file review petition. The counsel issued a letter to the Law Department seeking the reasons for delay in preferring the review petition. In first week of March, 2015, the Department apprised the reasons of delay. Thereafter certified copy of the judgment and order was applied. In the meantime, Dy. Director Education/South Zone issued a circular dated 17th March, 2015 for constitution of an inquiry committee to look into the matter of fixing RP No. 257/2015 in WP(C) 5861/2007 Page 6 of 16 responsibility of defaulting officers for not filing the appeal challenging the order dated 21st April, 2011.
10. Undoubtedly, a liberal, pragmatic, justice oriented and non- pedantic approach has to be adopted while considering the reasons offered to explain the delay by a litigant, however, that would not mean that in each and every case delay has to be condoned even where no convincing reasons are offered. If such an approach is adopted it will make Section 5 of the Limitation Act, 1963, nugatory. If a litigant is grossly negligent and the reasons offered are stereotype, vague and lack bona fides delay cannot be condoned. Length of delay is immaterial and it is the sufficiency of reasons which matters.
11. In M/s. M.L. Mahajan vs. DDA & Ors., 1992 RLR 242 it was observed:-
"Law has to be interpreted equally to all Govt. or statutory bodies like DDA cannot ask for liberal construction on the plea that delay occurred due to bureaucratic methods. DDA must give full and complete details as to when it learnt of adverse order, when it appointed lawyer and when he gave advice and when it moved Courts etc. DDA must explain each day's delay explaining its inertia, inactivity and inaptness."
12. Similar view was taken by Division Bench of this Court in UOI & Ors. vs. C.L. Jain Woolen Mills Pvt. Ltd., 2006 (5) AD (Delhi) 718 by observing that UOI unlike a normal litigant may not be called upon to explain each day's delay by giving a reasonable or plausible explanation but the entire delay has to be explained at least in a composite manner so as to enable the Court to exercise the discretion RP No. 257/2015 in WP(C) 5861/2007 Page 7 of 16 in favour of the applicant, if the application satisfies the ingredients enunciated by different judicial pronouncements.
13. In Postmaster General & Ors. vs. Living Media India Limited & Anr., (2012) 3 SCC 563, Apex Court held thus :-
"28. 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 bona fides, 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.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities and unless they have reasonable and acceptable explanation for the delay and there was bona fide efforts, there is no need to accept the usual explanation that the file was kept pending for several months/years 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
14. In Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629, Supreme Court has held thus :-
"18. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statues, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack RP No. 257/2015 in WP(C) 5861/2007 Page 8 of 16 bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."
15. In Basawaraj vs. Special Land Acquisition Officer, 2014 AIR (SC) 746, Supreme Court has held as under :-
"15. The law on the issue can be summaries to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
16. In Brijesh Kumar vs. State of Haryana, AIR 2014 SC 1612, Supreme Court has held as under :-
"11. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However, the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion RP No. 257/2015 in WP(C) 5861/2007 Page 9 of 16 by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone."
17. In P.K. Ramachandran vs. State of Kerala, (1997) 7 SCC 556, Supreme Court has held thus:-
"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds".
18. The reasons given by the respondent/applicant in the application are as vague as they could be. The reasons are bereft of any details. Perusal of the application only indicates that the file kept on moving from one table to another and legal recourse could not be taken on account of non-availability of records. After the concerned dealing made a note on 8th August, 2013 that the original court case file was missing from the almirah, there is nothing to show as to what happened till 19th January, 2015 when the Law Department decided to file a review petition. A stereotype plea, which is normally taken in the matter pertaining to Govt. Department to explain the delay, is taken in the present case as well.
19. In the facts of the present case, I am of the view that the respondent/applicant has failed to disclose sufficient reasons to explain delay of 1458 days in filing the application. Accordingly the application is dismissed.
RP No. 257/2015 in WP(C) 5861/2007 Page 10 of 1620. Though this Court has declined to condone the delay but still it will proceed to refer to the contention raised on behalf of the respondent/applicant that the impugned order is liable to be reviewed.
21. The basic thrust of the submission of the learned counsel for the respondent/applicant is that the reliance placed by this Court in Ram Narain's case for granting benefit to the petitioner is misconceived, inasmuch as, the facts of that case were different from the present case as in that case there was a dispute as to whether the workman had rendered more than 240 days of service in the year prior to proposed termination whereas in the instant case, there was no such dispute and it was the admitted case of the parties that the workman had rendered more than 240 days of service in the year prior to his termination and that there was violation of Section 25F of the Act. Therefore, in view of BSNL(supra), the Court could at best have awarded more compensation to the workman instead of passing the order for reinstatement with full back wages.
22. I have carefully gone through the judgment relied upon by the learned counsel for the respondent. In that case, it was observed that earlier view of the Court reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and the Court has taken the view that relief by way of reinstatement with back wages is not automatic. Compensation instead of reinstatement has been held to meet the ends of justice. However, in that case also, the RP No. 257/2015 in WP(C) 5861/2007 Page 11 of 16 Court added a caveat and pointed out the eventualities where instead of monetary compensation, reinstatement should be ordered. In the latest pronouncement of Hon'ble Supreme Court in Jasmer Singh (supra), it was observed that once it is found that the workman has worked for more than 240 days in a calendar year and termination order is void ab initio in law for non-compliance of Sections 25F of the Act, an order of reinstatement with continuity of service and full back wages was the appropriate relief. Without going into this aspect of the matter, if the respondent was aggrieved by this order, the appropriate relief available was to file a Letters Patent Appeal and not the application for review of the order as the powers of review are very limited.
23. The power of this Court of judicial review under Article 226 has been discussed by the Supreme Court in Bhuvnesh Kumar Dwivedi vs. Hindal Co. Industries Limited, (2014) 11 SCC 85, wherein the Apex Court has relied on its earlier judgment of Heinz India (P) Ltd. vs. State of U.P., (2012) 5 SCC 443 and has held as under:-
" 19. In Heinz India (P) Ltd. V. State of U.P., (2012) 5 SCC 443 this Court, on the issue of the power of the High Court for judicial review under Article 226, held as under: (SCC pp.467-68, para 60) "60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject- matter of several judicial pronouncements within and outside the country. When one talks of 'judicial review' one is instantly reminded of the classic and oft-quoted passage from Council of Civil Service Unions v. Minister for Civil Service, 1985 AC 374: (1984) 3 WLR 1174 :
(1984) 3 All ER 935(HL) where Lord Diplock summed up the RP No. 257/2015 in WP(C) 5861/2007 Page 12 of 16 permissible grounds of judicial review thus AC pp.410, F-H and 411 A-B) ".. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality", the second "irrationality" and the third "procedural impropriety".
By "illegality" as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable.
By "irrationality" I mean what can by now be succinctly refereed to as "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.
I have described the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an Administrative Tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
24. Reverting to the case in hand, there is no error apparent on the face of the record which calls for review of the order.
RP No. 257/2015 in WP(C) 5861/2007 Page 13 of 1625. Moreover, it is rightly submitted by the learned counsel for the petitioner that there is suppression of material facts by the respondent/applicant in the application as it is not disclosed that the order for payment of back wages was substantially complied with by the respondent. In this regard, it is submitted by the learned counsel for the respondent that the non-disclosure of the said facts was not intentional inasmuch as what happened prior to the bifurcation of MCD was not within the knowledge of the respondent and the back wages for the period 1.1.2012 to 30.09.2014 were deposited with Collector with clear understanding that it is subject to decision of the present applications. The explanation furnished by the learned counsel for the respondent is not acceptable. Even if the respondent was not aware about the factual position before the bifurcation at least the deposit of back wages for the period 1.1.2012 to 30.09.014 with the Collector could have been disclosed in the application but even that was not done.
26. In G.M. Haryana Roadways(supra), a Special Leave Petition was filed which was barred by time. Reinstatement and regularization of service was not brought to the notice of the Court. The petition was dismissed by observing as under:-
"12. ......Suppression of material fact is viewed seriously by the Superior Courts exercising their discretionary jurisdiction. In S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors., AIR2004SC2421 , this Court on suppression of fact held:
"As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed RP No. 257/2015 in WP(C) 5861/2007 Page 14 of 16 fact must be a material one in the sense that had it not bean suppressed it would have had an effect on the merits of the case."
The said observation was quoted with approval by one of us in Arunima Baruah v. Union of India (UOI) and Ors., (2007)6SCC120 , wherein the question which was raised was: How far and to what extent suppression of fact by way of non- disclosure would affect a person's right of access to justice?
The court notices that so as to enable it to refuse to exercise its discretionary jurisdiction, the suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the Appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case.
13. Recently, in Prestige Lights Ltd. v. State Bank of India, (2007)8SCC449, this Court held:
"The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter."
27. Payment of back wages w.e.f. 17th February, 1997 to 31st December, 2011 and deposit of the same w.e.f. 1st January, 2012 to 30th September, 2014 in compliance of the order passed by this Court was a material fact which was suppressed by the respondent/applicant. That being so, due to suppression of material facts, the respondent is disentitled to obtain the discretionary relief of review of the order which, even otherwise, on factual matrix of the case is unwarranted.
28. In view of the discussion made above, no ground for review of the order is made out. Accordingly Review Petition No. 257/2015 is dismissed with no order as to costs.
RP No. 257/2015 in WP(C) 5861/2007 Page 15 of 1629. As a necessary corollary, CM No.8363/2015 is also dismissed.
(SUNITA GUPTA) JUDGE JULY 02, 2015 rs RP No. 257/2015 in WP(C) 5861/2007 Page 16 of 16