Jharkhand High Court
The State Of Jharkhand & Ors vs Bahabiti Marandi on 11 November, 2019
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 438 of 2018
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The State of Jharkhand & Ors. --- --- Appellants
Versus
Bahabiti Marandi --- --- Respondent
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh The Hon'ble Mr. Justice Kailash Prasad Deo
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For the Appellants : Mr. Anup Kr. Agarwal, A.C. to G.A.V For the Respondent : Mr. Kaushalendra Prasad, Adv.
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07/11.11.2019 Heard learned counsel for the appellants and the writ petitioner/respondent on the prayer for condonation of delay of 182 days in preferring the instant memo of appeal made through I.A. No.7258/2018.
Learned counsel for the appellants submits that by the impugned judgment learned Single Judge has directed the Deputy Commissioner, Dumka to offer appointment letter to the petitioner on a Class-IV post on compassionate grounds. It is submitted that the learned Writ Court failed to consider that the petitioner was a minor at the time of making her application and has now become married. It is further urged that since the cause of action relates back the date of death of the employee i.e. 7 th April 2001, the new Rules framed by the State in 2015 cannot apply retrospectively to consider the case of a married daughter as has been held by the learned Single Judge. Apart from that, widow of the deceased and mother of the petitioner had applied for compassionate appointment beyond the period of five years of death, as such the widow's claim was not entertainable on grounds of delay while petitioner's claim was rejected on 18th June 2009 for the reason that she was a minor at the time of her application made within the prescribed period of five years from the date of death. On the point of delay learned counsel for the appellants submits that the impugned order dated 9th January 2018 was communicated by the Registry of the Court to the respondent and received on 8th February 2018. Thereafter the Deputy Commissioner, Dumka through letter dated 27th February 2018 sought guidelines from the Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand with regard to the action to be taken. The Principal Secretary, Personnel vide letter no.2811 dated 26th April 2018 directed the Deputy Commissioiner, Dumka to prefer an appeal before the learned Division Bench of this Court. Thereafter, the statement of the facts were -2- prepared and sent for filing memo of appeal vide letter dated 28th July 2018 to the concerned Law Officer of the State. The appeal was drafted and filed thereafter which has occasioned the delay of 182 days which has been properly explained. There are no deliberate laches on the part of the appellants State in preferring the instant memo of appeal and delay, if any, were caused due to reasons beyond control of the appellants. Appellants have good grounds to succeed. If the delay is not condoned, appellants State would suffer irreparably as the impugned order may have far reaching consequences on the case of other similarly placed claimants, though it otherwise suffers from errors of law.
Learned counsel for the writ petitioner has strongly opposed the prayer. He submits that delay condonation application does not enclose any correspondence over which the appellants have relied to justify the processing of the file between the departments for explaining the delay. Learned counsel has further relied upon the judgment of learned Division Bench of this Court rendered in M/s. Central Coalfields Ltd. Vs. Sarlu Mahato reported in 2017(2) JBCJ 199 (HC). It is submitted that the learned Court on that occasion refused to condone the delay of 38 days in preferring the memo of appeal on the part of M/s. Central Coalfields Ltd. since there were no documents to substantiate the movement of the files from one department to another in explaining the delay. Learned Division Bench has also referred to a judgment rendered by the Apex Court such as in the case of State of Uttar Pradesh & Anr. vs. Amarnath Yadav reported in (2014) 2 SCC 422 while rejecting the appeal on grounds of delay. The appellants have not shown bonafide explanation for condonation of delay. Therefore, the prayer for condonation of delay may be rejected and the appeal be dismissed.
We have considered the submissions of the learned counsel for the parties, taken note of the attendant relevant material facts borne from the records including the explanation furnished on behalf of the appellants for the delay of 182 days i.e. 6 months beyond the period of limitation i.e. 30 days in preferring the instant memo of appeal.
While considering such an application for condonation of delay the principles which have been laid down by the Apex Court from time to time have to be kept in mind. We find from the judgment rendered by the learned Coordinate Bench of this Court that the illustrative -3- circumstances to be borne in mind while dealing with such an application has been evidenced relying upon the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Acadmey and Others reported in (2013) 12 SCC 649 which are profitably quoted hereunder :-
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3.(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
-4-21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
The broad approach which emerges out of ratio rendered by the Apex Court in such cases, especially in the case of Esha Bhattacharjee (Supra) is to the effect that Court should be liberal, pragmatic, justice- oriented and non-pedantic while dealing with the application of condonation of delay as Courts are not supposed to legalise injustice but are obliged to remove the injustice. The terms 'sufficient cause' has to be understood in the proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. Substantial justice being paramount and pivotal the technical consideration should not be given undue and uncalled for emphasis. Lack of bonafides is a significant and relevant consideration on the party seeking condonation of delay. At the same time the Apex Court has observed that adherence to strict proof should not effect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. The entire gamut of facts are to be -5- carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. It has also been observed that the State or a public body or an entity representing a collective cause should be given some acceptable latitude. At the same time, the Apex Court has further observed at para-22 that condonation of delay application should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. Such application should not be dealt with in a routine manner. No precise formula can be laid down having regard to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
In the facts of the present case, we find that the appellants State have though not enclosed the correspondences, but on affidavit clearly referred to the letters written by the Deputy Commissioner, Dumka upon whom the impugned direction was issued, for seeking guidance from the Department of Personnel of the State as the issue involved had wider ramification in matters relating to compassionate appointment amongst various departments of the State, the nodal body being the Department of Personnel and Administrative Reforms. We further find that Personnel Department issued instructions to the Deputy Commissioner, Dumka after deliberating over the matter vide letter no.2811 dated 26 th April 2018. Thereafter, the statements of facts and grounds were prepared and the instructions were furnished to the Law Officer of the State through letter dated 28th July 2018. Memo of appeal was drafted and filed on 9 th August 2018 without any delay thereafter. The whole process followed by the State occasioned delay of 182 days which have been broadly explained though the delay could have been minimized with more diligence and promptitude considering the seriousness of the issue raised by the appellant in the main memo of appeal.
In the facts of the case of M/s. Central Coalfields Ltd. (supra) relied upon by the learned counsel for the writ petitioner, it appears that though the delay condonation application made specific reference to the movement of file intra-department for seeking approval for filing the -6- appeal, but neither does it enclose any letter nor it makes reference to any such dates of the movement of file including any letter number. That seems to have weighed upon the learned Court in refusing to give credence to the plea raised by the appellants-CCL as an explanation for the delay. Learned Division Bench has however at the same time copiously referred to the ratio rendered by the Apex Court in the case of Esha Bhattacharjee (Supra), profusely relied upon by this Court in the foregoing paragraphs. We are therefore inclined to take a pragmatic and justice-oriented approach in the background of facts noted above since lack of bonafides cannot be imputed to the appellants in moving the appeal before this Court.
Having regard to the totality of the facts and circumstances noted above, we are satisfied that interest of justice would be served if delay is condoned, however with a condition that appellants should pay a cost of Rs.3,000/- to the respondent/writ petitioner. I.A. No. 7258/2018 is accordingly allowed. Let the case be listed under the heading 'For Admission' in the next week.
(Aparesh Kumar Singh, J.) (Kailash Prasad Deo, J.) Shamim/