Madras High Court
K.N.Sivan Malai vs The Presiding Officer on 28 November, 2017
Author: S.Manikumar
Bench: S.Manikumar, R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.11.2017 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.A.Sr.No.71592 of 2017 C.M.P.No.20434 of 2017 K.N.Sivan Malai .. Appellant Vs. 1.The Presiding Officer, Labour Court, Salem 2.The Manager, Tamil Nadu State Transport Corporation, (Coimbatore Division 2) Ltd., Erode-1 .. Respondents PRAYER: Civil Miscellaneous Petition is filed under Section 5 of the Limitation Act, to condone the delay of 2817 days in filing the above Writ Appeal. For Appellant : M/s.S.Girija JUDGMENT
(Order of the Court was made by S.MANIKUMAR, J.) Award, dated 19.03.2003 made in ID No.286 of 1999, has been passed by the Labour Court, Salem, directing reinstatement, without backwages. Against the award, directing reinstatement, Management of Tamil Nadu State Transport Corporation, (Coimbatore Division 2) Ltd., Erode-1, 2nd respondent herein, has filed W.P.No.33337 of 2004. Portion of the award, denying backwages, has been challenged by the workman in W.P.No.1629 of 2005. Both the writ petitions, have been taken up together and vide order, dated 30.10.2009, the writ Court, dismissed both the writ petitions, holding that the workman is not entitled to backwages. Being aggrieved by the order of dismissal of W.P.No.1629 of 2005, dated 30.10.2009, instant writ appeal has been filed by the workman, with a delay of 2817 days.
2. Supporting the prayer, to condone the delay, the appellant/workman at paragraphs 6 and 7 of the affidavit, has submitted that after dismissal of abovesaid writ petition, his family was facing heavy financial constraint; his wife was suffering from diabetic; his right arm was dislocated and there was fracture of both the bones in right leg, in the accident, which occurred during the course of his employment, and that he was treated continuously for knee problems; and his mother died in the year' 2013.
3. During the course of hearing, Mrs.S.Girija, learned counsel appearing for the appellant submitted that on attaining the age of superannuation, the appellant retired on 28.02.2007.
4. From the material record, it could be deduced that when the writ petition was pending, the appellant retired from service on 28.02.2007. Order made in W.P.No.1629 of 2005, has been passed on 30.10.2009. After the retirement of the appellant, on 28.02.2007, more than 10 years have been lapsed. Now, after a decade, the appellant/workman has come forward with the instant appeal, citing ill-health, and other reasons.
5. Though, Courts have consistently held that delay should not be pitted against substantial justice, the Hon'ble Supreme Court in H.Dohil Constructions Company Private Limited v. Nahar Exports Limited and Another, reported in 2015 (1) Supreme Court Cases 680, after considering of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, reported in (1990) 1 LLN 457 and the decision of the Hon'ble Supreme Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649 at paragraph Nos.23 and 24, held as follows:
23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee [Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59) 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.
21.8. (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 weight 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.
24. When we apply those principles to the case on hand, it has to be stated that the failure of the Respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bonafides as displayed on the part of the Respondents. Further, when the Respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered.
6. In our view, averments made in support of the affidavit to the petition to condone the huge delay of 2817 days, in filing the appeal, do not show sufficient cause, more so, after the attainment of age of superannuation on 28.02.2007. We are in 2017. Appellant appears to have filed this appeal, after a decade. Reasons assigned in the supporting affidavit, to condone the delay, are not satisfactory.
7. In the light of decision of the Hon'ble Supreme Court, and the discussion, we are not inclined to condone the delay of 2817 days, in filing the W.A.Sr.No.71592 of 2017. Hence, both W.A.Sr.No.71592 of 2017 and C.M.P.No.20434 of 2017 are dismissed.
(S.M.K.,J.) (R.S.K.,J.) 28.11.2017 DM/SKM S.MANIKUMAR, J.
AND R.SURESH KUMAR,J.
DM W.A.Sr.No.71592 of 2017 C.M.P.No.20434 of 2017 28.11.2017