Gauhati High Court
State Of Tripura And Ors. vs Parul Das @ Parul D'Souza And Ors. on 15 June, 2007
Equivalent citations: 2007(4)GLT220
Author: R.B. Misra
Bench: R.B. Misra
JUDGMENT R.B. Misra, J.
1. Heard Mr. G.S. Bhattacharjee, learned Advocate for State of Tripura and other section Also heard Mr. A. Lodh along with Mr. U.K. Majumder, learned Counsel for the Opposite Party.
2. As agreed by the learned Counsel for the parties, the case is taken up today for final disposal at the admission stage.
3. The present petition under Article 227 of the Constitution has been filed against the order dated 27.11.2006 passed by the Commissioner, Workmen's Compensation, West Tripura, Agartala in Civil Misc. Case No. 136 of 2005 where by the prayer for condoning the delay of 69 days in the Review application being Civil Misc. Case No. 136/2005 (both the delay condonation petition and the review application) was rejected. An application under Section 5 of the Indian Limitation Act was preferred for condoning the delay seeking review of the Judgment and Award dated 25.01.2005 passed by the learned Commissioner in Case No. T.S. (MAC) 33/2001.
4. In the instant petition, the petitioner has made a prayer for issuance of writ of certiorari for setting aside the impugned order dated 27.11.2006.
In the facts and circumstances, the sole question for adjudication is whether this Court can invoke its power of superintendence under Article 227 of the Constitution in respect of the order of rejection of condonation of delay on merits by learned Commissioner, Workmen's Compensation preferred along with Review Petition for reviewing his judgment and award of compensation by reassessing the grounds, materials on record, correctness and remit the matter for rehearing the application for condoning the delay for the purpose of deciding the review petition on merit section.
5. On perusal of the records, it appears that T.S. (W.C.) 33/2001 was preferred by Smt. Parul Das alias Parul D'Souza as a Claimant Petitioner before the Commissioner, Workmen's Compensation, West Tripura, Agartala under Section 4 and 4A of Workmen's Compensation Act claiming compensation of Rs. 4,20,080/- in reference to death of her son Khokan Das on 26.04.2001 while driving Vehicle No. TR-01 -907 (bullet proof vehicle) which was hired by Jirania Police for escorting one MLA, Sri Pranab Deb Barma. On the way, when the said vehicle was attacked by a group of extremists, as a result, Khokan Das (the deceased son of the claimant petitioner, Smt. Parul Das) and other two police personnel were killed. Since, Khokan Das (deceased) died during the course of employment as a driver, therefore, for adjudication of the compensation, issues were framed and the contents of FIR, Death Certificate, Post Mortem Certificate and other materials on record were scrutinized and keeping in view, the monthly income of the deceased and his age, and by applying the prescribed multiplier under Workmen's Compensation Act, a compensation of Rs. 2,82,500/- was awarded with 12% interest per annum from the date of incidence i.e. from 26.04.2001 till the date of payment with certain direction section
6. Being aggrieved by the above order dated 25.01.2005 of learned Commissioner, Workmen's Compensation passed in Case No. T.S. (W/C) 33/2001, the State of Tripura preferred a Civil Misc. Case No. 136/2005 for reviewing the Order dated 25.01.2005mainly on the ground that the Claimant Smt.Parul Das has already been paid an ex-gratia payment of Rs. 1,25,000/- by the State Government (Police Department) under a scheme and since such amount was not adjusted in the amount of compensation awarded by learned Commissioner, Workmen's Compensation in its Order dated 25.01.2005, therefore, the review petitione.g. Civil Misc. Case 136/05 was preferred with an application of condonation by delay of 69 day section
7. It appears that no application for condonation of delay was accompanied with the application for review in question. The learned Commissioner, Workmen's Compensation has indicated in its impugned Order dated 27.11.2006 that the provision for filing of Review Petition is available only under Section 6 of Workmen's Compensation Act, and for preferring Review Petition, the application for condonation of delay was also to be accompanied with Review Petition, whereas the application for condonation of delay for condoning 69 days in preferring review petition was separately filed after an inordinate delay of 313 day section The learned Commissioner, Workmen's Compensation, has, however gone through the explanation and contents of the application for condonation and was not satisfied on the grounds, reasons and explanation to condone the delay. Therefore, in the facts and circumstances relying on the Judgment of this High Court in 2001 GLR 327 (Union of India v. Agro Food Ltd. and Ors.) on the point of a "sufficient cause" in Section 5 of Limitation Act" and on appraisal of the explanation put forward on behalf of the State Authorities furnished in the application for condonation of delay in support of the review application has observed that learned Commissioner was not satisfied with inordinate delay as the delay was not sufficiently and satisfactorily explained from the side of the appellants herein. Consequently the application for condonation of delay was rejected and the instant application for review was also rejected being hopelessly barred by limitation.
8. Learned Counsel for the petitioner has placed reliance on the decision of the Hon'ble Supreme Court in (State of Nagaland v. Lipok Ao and Ors.) where the "sufficient cause" in reference to the condonation of delay has been elaborated and guidelines have been provided for dealing the application of condonation of delay. The Supreme Court in Lipok Ao and Ors. (supra) has observed that:
Proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. What constitutes sufficient cause cannot be laid down by hard-and-fast rule section.
It was also observed that a pragmatic approach has to be adopted on the procedural technicalities and when substantial justice and technical approach are pitted against each other the former has to be preferred.
9. The Supreme Court has referred and relied upon "N. Balakrishnan v. M. Krishnamurthy ; New India Insurance Co. Ltd. v. Shanti Misra ; Brij Indar Singh v. Kanshi Ram ILR (1918) 45 Cal 94 : AIR 1917 PC 156 : Shakuntala Devi Jain v. Kuntal Kumari, ; Concord of India Insurance Co. Ltd. v. Nirmala Devi, (1979) 4 SCC 365 : Lala Mata Din v. A. Narayanan, (1969) 2 SCC 770; State of Kerala v. E.K. Kuriyipe, 1981 Supp SCC 72; Milavi Devi v. Dina Nath, (1982) 3 SCC 366; O.P. Kathpalia v. Lakhmir Singh, ; Collector, Land Acquisition v. Katiji, ; Prabha v. Ram Parkash Kalra, 1987 (Suppl.) SCC 339; G. Ramegowda v. Spl. Land Acquisition Officer, ." and has observed in Paragraph 15 as below:
The Government decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay--intentional or otherwise- is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice--oriented proces section The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases required adjustment and should authorize the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal, needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while the State is an impersonal machinery working through its officers or servant section.
The other relevant Paragraphs 9, 10, 11, 12, 14 and 16 of Lipok Ao (supra) are necessary to be quoted as below:
8 The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan (supra) it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheel section.
9. What constitutes sufficient cause cannot be laid down by hard-and-fast rule section In Shanti Misra (supra) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh (supra) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain (supra) a Bench of three Judges had held that unless want of bonafides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
10. In Concord of India Insurance Co. Ltd. v. Nirmala Devi (supra) which is a case of negligence of the Counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din (supra) this Court had held that there is no general proposition that mistake of Counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bonafide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the Counsel was bona fide and it was not tainted by any malafide motive.
11. In State of Kerala v. E. K. Kuriyipe (supra) it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. In Milavi Devi (supra) it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation.
12. In O.P. Kathpalia v. Lakhmir Singh (supra) a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector, Land Acquisition v. Katiji (supra) a Bench of two Judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merit section The expression "sufficient cause is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice--that being the life purpose for the existence of the institution of court section It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the massage does not appear to have percolated down to all the other courts in the hierarchy. This Courtreiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, common-sense, pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserved to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberately, or on account of culpable negligence, or on account of mala fide section A litigant does not stand to benefit by resorting to delay.
14. In G. Ramegowda v. Spl. Land Acquisition Officer (supra) it was held that no general principle saving the party from all mistakes of its Counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of delay.
16. The above position was highlighted in State of Haryana v. Chandra Mani and Special Tehsildar, Land Acquisition v. K.V. Ayisumma . It was noted that adoption of strict standard of proof sometimes fails to protract (sic) public justice, and it would result in public mischief by skilful management of delay in the process of filing an appeal.
10. In order to appreciate the difference, scope and applicability of Article 226 and 227 of the Constitution, it is necessary to refer Surya Dev Rai v. Ram Chander Rai . For convenience the extract of some observations are provided as below:
(a) In practice parameters for exercising jurisdiction under either Article are almost similar and width of jurisdiction exercised by High Courts, unlike English courts, has almost obliterated distinction between the two jurisdictions--Three differences that nevertheless exist, pointed out--They are: (i) Issuing writ of certiorari is an exercise of its original jurisdiction by High Court while exercise of supervisory jurisdiction under Art. 227 not an original jurisdiction, in this sense the latter is akin to appellate revisional or corrective jurisdiction; (ii) If High Court issues writ of certiorari it may only annual or quash proceedings but cannot substitute its own decision in place thereof, while in exercise of supervisory jurisdiction High Court may not only quash or set aside the impugned proceedings, judgment or order but may also give suitable directions so as to guide the subordinate court as to the manner in which it should proceed thereafter or afresh; also in appropriate cases High Court may make an order in super-session or substitution of order of subordinate court as the court should have made in the facts and circumstances of the case; and (iii) Jurisdiction under Art. 226 has to be invoked by an aggrieved party, but supervisory jurisdiction under Art. 227 can be exercised suo motu as well (Para38).
(b) Writ of certiorari is issued for correcting gross errors of jurisdiction: when it is found that a subordinate court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction, or (iii) in flagrant disregard of law or rules of procedure or principles of natural justice, thereby occasioning failure of justice while supervisory jurisdiction under Article 227 is exercised for keeping subordinate courts within bounds of their jurisdiction when it is found that a subordinate court has acted (i) without jurisdiction, or (ii) has failed to exercise a jurisdiction which is available, or (iii) where it has jurisdiction but has acted in a manner not permitted by law and failure of justice or grave injustice has been occasioned thereby--Further held, neither is available for correcting mere errors of fact or law--Available only when (i) error is manifest and apparent on face of record, and (ii) grave injustice or gross failure of justice has been occasioned thereby--Also, neither is available when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved--Power under either Article to be used sparingly, that is, where judicial conscience of High Court dictates it--Practical considerations while correcting errors during the pendency of suit or proceedings pointed out--High Court has to choose between causing delay by its intervention and meet the need for imminent action--High Court not to convert itself into a court of appeal-Not to reappreciate or re-evaluate evidence or correct errors of mere formal or technical character or those made in drawing inferences (Para 39).
11. In State v. Navjot Sandhu (2003) 6 SCC 64 Para 28 it was held by the Supreme Court as below:
Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial Superintendence must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere error section Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised in the "cloak of an appeal in disguise".
12. In Sadhana Lodh v. National Insurance Co. Ltd. it was held by the Supreme Court as below:
Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge; the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 CPC. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. (Para 6) The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or a tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision. (Para 7)
13. In Kishore Kumar Khaitan and Anr. v. Praveen Kumar Singh the Supreme Court has observed as below:
In short, in exercise of its jurisdiction under Article 227 of the Constitution, it behoved the High Court to consider whether the order of interim mandatory injunction was supported by the necessary finding section That' is certainly a question of jurisdiction, since the jurisdiction to an interim mandatory order can only be based on such clear findings and the grant of an interim order without such findings would be acting without jurisdiction. (Para 12) The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction. Here the jurisdiction to grant an interim mandatory injunction could be exercised on entering a finding that on the day the order for maintaining the status quo was passed, the plaintiff was in possession and a day after the interim order was passed, he was in fact dispossessed. The interim direction to maintain status quo was an ex parte order. From the order of the Additional District Court it is not possible to come to the conclusion that on a proper advertence to the relevant materials, prima facie clear findings had been rendered by that court on these aspect section The prima facie infirmities attached to the letter said to create the tenancy cannot also be ignored, since that transaction is the foundation of the plaintiff's claim of possession. (Para 13)
14. The Supreme Court in Securities and Exchange Board of India v. Arihant Cotsyn Ltd. (2005) 13 SCC 498, paragraph 4 has observed that revisional jurisdiction of High Court could always be exercised where the subordinate court is found to have acted without jurisdiction or in excess of jurisdiction and for the purpose of keeping the subordinate court within bounds when the sub-ordinate court has assumed jurisdiction which it did not have or has failed to exercise jurisdiction which it does have. Since the instance case keeping in view the grounds and the relief prayed, not falling under any of the enumerated categories, therefore, interference in exercise of revisional jurisdiction under Article 227 is uncalled for.
15. This Court (learned single Judge) while disposing of Civil Revision Petition No. 07 of 2007 on 8.6.2007 has observed that "Article 227 of the Constitution of India indicates the power of superintendence over all courts by the High Court and it does not provide to make a fresh appraisal of the facts, controversial issues, disputed facts, reappraisal of evidences, review or reweigh the evidences for the purpose of making or substituting another finding on the award or compensation on the ground of illegality and incorrectness of the impugned judgment and award of the learned Tribunal.
16. In Bijoy Kumar Dugar v. Bidya Dhar Dutta and Ors. the Supreme Court has observed in Paragraph17 as below:
Thus, in the light of the decision of this Court in Sadhana Lodh v. National Insurance Co. Ltd. with the provisions of Sections 173 and 149 (2) of the Act and the provisions of Articles 226 and 227 of the Constitution and also Section 115 of the Code of Civil Procedure, 1908 this Court held that since the insurer has a remedy by filing an appeal before the High Court on the available defences envisaged under the statute, writ petition under Articles 226/227 of the Constitution by an insurer challenging the award of MACT is not maintainable.
17. I have heard learned Counsel for the parties and perused the documents Present Civil Review Petition on behalf of the appellants has been preferred under Article 227 of the Constitution of India which undoubtedly is for the purpose, mainly to exercise the power of superintendence over the lower Courts by the High Court. A prayer in the petition has also been made for certiorari. This court in the present case is not exercising its power as an appellant authority and only adjudication the present Civil Writ Petition under Article 227 where merits of the case so far testing the impugned order dated 27.11.2006 passed in Civil Petition 136/2005 preferred by the appellants by way of dismissing the delay condonation application accompanied by Review Petition is in question. The matters has been dealt with on merits and not finding satisfactory explanation in the application for condonation of delay, the same has been rejected by learned Commissioner, Workmen's Compensation. This court at present cannot examine the extent of satisfaction of the learned Commissioner to test the merits of the impugned order and the facts and circumstances to analyse whether under material documents, learned Commissioner, Workmen's Compensation has rightly or wrongly disposed of the application for condonation of delay. Since, this Court cannot go to the genuinity of the explanation also in support of the condoning delay in reference available document section In my considered view, the applicability of the decision of the Supreme Court in LIPOK AO and Ors. (supra) as referred by learned Counsel for the appellant could only be helpful provided this Court is in a position to assess/analyse and scrutinize the genuineness of non-satisfaction or to test the correctness of subjective satisfaction of learned Commissioner in respect of the explanation for condonation of delay on merits as an appellate authority while testing the order dated 27.11.2006 passed in Misc. Case 136/2006.
18. Therefore, in my respectful consideration in the facts and circumstances, the jurisdiction under Article 227 of the Constitution cannot be invoked. Therefore, without making any comments as to whether the deposited amount of the State Government to the claimant, Smt. Parul Das could be adjusted in the main amount of compensation or not and without making any comments on merits as regards quantum of compensation awarded by learned Commissioner, Workmen's Compensation in T.S. (W/C) 33/2001 in its order dated 25.01.2005, suffice is to say that this Court cannot entertain the present Civil Revision Petition under Article 227 of the Constitution.
Therefore, the present Civil Revision Petition is dismissed.