Calcutta High Court (Appellete Side)
Sailes Kumar Chakraborty & Ors vs Union Of India & Ors on 23 September, 2009
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Pratap Kumar Ray
And
The Hon'ble Justice Tapan Kumar Dutt
W.P.C.T No.272 of 2008
Sailes Kumar Chakraborty & Ors.
Versus
Union of India & Ors.
For the petitioners : Mr. Santanu Mukherjee, Advocate
Mr. Tarun Kanti Ghosh, Advocate
For Respondents : Mr. Tapendra Mullick, Advocate
Heard On : 19.6.2009
Judgment On : 23RD SEPTEMBER, 2009.
Pratap Kumar Ray, J.
Assailing the order dated 2nd May, 2008 passed in Miscellaneous Application No.251 of 2007 in connection with original application No.1335 of 1996 along with M.A No. 252 of 2007 praying condonation of delay in filing the restoration application being M. A. No.251 of 2007, this writ application has been filed. The impugned order read such :
" ORDER
K. V. Sachidanandan, VC:
2
M.A. 251 of 2007 is an application for restoration of OA 1335 of 1996 which was dismissed for default on 19.4.2005 to its file and number. Since the restoration application has been filed beyond time, a separate application has also been filed being MA 252 of 2007 for condonation of delay in filing the restoration application.
2. We have heard the ld. Counsel for both parties at length.
3. Ld. Counsel for the respondents has opposed the applications mainly on two grounds. The first ground is that the application for restoration is hopelessly barred by limitation inasmuch as the OA was dismissed by the Tribunal for default of appearance of the applicants or their counsel on 19.4.2005 whereas the present restoration application has been filed on 25.4.2007 i.e. after about two years delay. There is no satisfactory explanation in the condonation application for such inordinate delay and on that ground alone the application is liable to be dismissed. Secondly, the OA as filed jointly by 8 applicants whereas the present restoration application has been filed by only 3 of them and out of them also two have already retired. Apart from that the other 5 applicants of OA have been made proforma respondents in this application which is not permissible because if the OA is to be restored at all it has to be so restored in its totality and not partly for the present 3 applicants. Thus, the restoration application in its present form is not at all maintainable.
4. Ld. Counsel for the applicant has argued forcefully that the delay is not attributable to the applicants herein. It is submitted that the ld. Advocate of the applicants in the OA lost track of the case and also mislaid the papers and therefore, he could not appear on the date the case was fixed and on that ground the case was dismissed for default. The dismissal order was communicated to applicant No.1 i.e. 3 Shri Abir ghosh, who did not communicate the same to the other applicants. The present applicants came to know about it only in April, 2007 and thereafter the present restoration application has filed. Thus, the applicants cannot be said to be at fault and hence the delay may be condoned. He has placed reliance on a decision of the Hon'ble Supreme Court viz. N. Balakrishnan -vs- M. Krishnamurthy, SCR 1998(Supp) 1 403 and contended that since there was sufficient cause for the delay, length of delay is not relevant.
5. We have given our anxious consideration to the rival contentions and perused the documents perused.
6. In the OA the 8 applicants, who were working as Sr. Section Officer(A) in the office of FA & CAO, Eastern Railway, challenged the selection examination for promotion to the post of AAO against 70% quota. Their grievance was that ineligible persons were called without following the rules and also the post-based reservation roster after the decision in R. K Shabarwal's case. Their further grievance was that they were also eligible for promotion to such post against 30% limited departmental examination quota but the respondents were not taking steps for holding such examination and for preparation of integrated seniority list. It appears that on similar ground another OA was filed by some other applicants being OA 1112 of 1996( Sunil Kr. Chakraborty & Ors. -vs- UOI & Ors) which was disposed of on 17.10.1996 giving certain directions regarding holding of viva voce test. In the OA also there was some interim order initially regarding non-publication of result but subsequently it was modified after the above deicion dt. 17.10.96.
47. It further appears from the record that none was appearing for the applicants on several occasions and therefore, the OA was dismissed for default observing that the applicants might have lost interest in the case.
8. Now, out of 8 original applicants, only 3 have come up in this restoration application after a considerable delay making the remaining 5 applicants has proforma respondents and there were also other private respondents. The explanation for delay as stated in the application is that the earlier advocate-
"............ Mr. Biswarup Banerjee, who is an elderly gentleman, mislaid the papers of the above case and lost track of the dates of the case. Accordingly, on April 19, 2005 when the above case was called on for hearing by this Hon'ble Tribunal none was present on behalf of the applicants and consequently this Hon'ble Tribunal was pleased to dismiss the case for default.
That a copy of the Hon'ble Tribunal aforesaid order dismissing the said original applciation for default was sent to the proforma respondent No.1 Abir Ghosh, who was the applicant No.1 but he did not inform the other applicants including your petitioner that the said original application had been dismissed for default. Hence your petitioners were unaware of such dismissal.
That towards the end of March 2007 your petitioners went to your petitioners' learned advocate, Mr. Biswarup Mukherjee but he told your petitioner that he had mislaid the papers of the said original application and was not aware of the fate thereof.
That thereafter towards the beginning of April 2007 your petitioner engaged another learned advocate who enquired about the case and came to know for the first time on or about April 20, 2007 that original application No.1335 of 1996 had been dismissed for default on April 19, 2005.
That thereafter your petitioners' newly engaged advocate lost no time in preparing the instant application for restoration of the said original application."5
9. Except such bald averment, no document has been produced nor even a statement from the earlier advocate Mr. Biswarup Mukherjee (not Biswarup Banerjee as stated). It is strange that the applicants have made such a statement and verified the same without any supporting evidence. The OA was filed long back in 1996 and it is the case of the applicants that they were not aware of the development as their advocate lost track of the case and was not appearing. Such a statement is not believable in the absence of at least an affidavit from the earlier advocate on record.
10. In N. Balakrishnan's case (supra) the Hon'ble Apex Court has observed regarding the question of delay as follow:-
" It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Some times delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the exlanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding much less in revisional jurisdiction unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse........."
11. The ld. Counsel for the applicants has stressed that length of delay is not a matter in this case. However, from the above observation of the Apex Court it is clear that acceptability of explanation for the delay is the main criterion. Applying this principle we are of the definite opinion that the explanation given by the applicants is not acceptable because as stated above except a bald statement there is no document in proof thereof and the entire blame has been shifted to the advocate on record and applicant No.1 of the OA behind their back.
612. Secondly, five co-applicants of OA have been made proforma respondents in this MA. If the OA is restored to its file, these five proforma respondents will be opposite party whereas they were the original applicants and this will change the nature and character of the OA. Therefore, it is not also advisable to restore the OA.
13. Thirdly, the OA having been dismissed for default in May 2005, and the interim order having been vacated automatically, status quo ante cannot be restored now. Therefore, no useful purpose will also be served in restoring the OA at this distant date.
14. So considering all aspects of the matter, we are unable to accept the prayer of the applicants and condone the delay. Accordingly, the condonation application is dismissed. Consequently, the restoration application also stands dismissed. No costs."
The learned Tribunal refused to allow the application seeking condonation of delay in preferring the application praying restoration of original application No.1335 of 1996 mainly on two grounds namely that all the original applicants being total eight in number did not join in the restoration application as applicants except three original applicants who approached the Court for restoration application by adding the rest five applicants as proforma respondents. Secondly, on the ground that no document relating to conduct of the learned Advocate which became the cause of absence of the applicants through the said learned Advocate on the date of hearing when the original application dismissed for default was filed along with the application seeking condonation of delay of the restoration application.
7So far as ground of non-adding the other original applicants as applicants in the restoration application and the application seeking condonation of delay, we are of the view that there is no legal embargo to entertain the application and thereby to allow the application restoring the original application in file even if the other applicants of the original application did not seek any order praying restoration of the main application. This point has been considered long back in the case Bishambhar Nath v. Girdhari Lal & Ors. reported in AIR 1919 Oudh 4 wherein the Court held that it is the discretion of the Court to allow the application and in the event of allowing such application, the entire matter will get its life for final adjudication irrespective of the fact that some of the parties affected by the dismissal on the ground of default could not join in the original application. This judgement has persuasive value for our finding that there was no legal embargo to consider the application seeking restoration of original application in its totality irrespective of the fact that out of eight original applicants only three applicants approached the tribunal.
So far as ground No.2 is concerned about the conduct of the learned Advocate, only for non-filing of documentary evidence to that effect, ipsofacto will not be a material ground to reject the application for restoration and application seeking condonation of delay. Lawyer's negligence is a good ground to restore a case. Similar point considered by Apex Court in the case Satpal Singh vs. Chunnilal reported in (2009) 6 SCC 607.
8It appears from the application seeking condonation of delay that a positive averment made by the writ petitioners to this effect that due to conduct of the lawyer and due to the reason that order of dismissal was not communicated, the petitioner could not take steps. In the original application the writ petitioners assailed the promotional scope under the terms and conditions of service to the post of Assistant Accounts Officer, Group-D from the feeder post of Senior Section Officer-A, Senior Travelling Inspector of Accounts and Senior Inspector of Stores & Accounts on the basis of quota for such selection. An interim order was passed by the learned Tribunal below on 3rd December, 1996 directing that any appointment on the basis of viva voce test would abide by the result of the said original application. It appears from the records further that learned Advocate Mr. Biswarup Mukherjee lost track of the dates of the case and as a resultant effect it was dismissed for default on 19th April, 2005. This fact of dismissal was not informed to the writ petitioners and ultimately the fact revealed on engaging another lawyer that original application stood dismissed long back. Those facts has not been controverted by any person, who had any contra knowledge. Having regard to such state affairs we are of the view that only for technical ground, the subjective issue of challenge about promotional avenues, could not be declared as a dead one, as it is a question of consideration for promotional post where the petitioners have a legal right to be considered as per recruitment procedure and any breach or violation either statutory rule or constitutional provision, requires an adjudication on merit.
9Considering those aspects of the matter, we are of the view that this application should be allowed. Impugned order rejecting the application seeking condonation of delay and the application seeking restoration of original application stands set aside and quashed. Those applications stand allowed and the matter is restored to its file. The learned Tribunal is directed to dispose of the original application No.1335 of 1996 by expeditious hearing as early as possible as per roster of the learned Tribunal below. Writ application is accordingly allowed.
(Pratap Kumar Ray, J.) I agree, (Tapan Kumar Dutt, J.)