Orissa High Court
State Of Odisha vs Pradipta Kumar Mohanty on 11 December, 2024
ORISSA HIGH COURT : CUTTACK
I.A. No.2585 of 2023
in
W.A. No.1003 of 2023
In the matter of an Application to condone the delay
in filing Appeal under Article 4 of
the Odisha High Court Order, 1948
read with
Clause 10 of the Letters Patent constituting
the High Court of Judicature at Patna
and
Rule 6 of Chapter-III and Rule 2 of Chapter-VIII
of the Rules of the High Court of Odisha, 1948
***
1. State of Odisha Represented through its Principal Secretary to Government Forest, Environment & Climate Change Department Kharavela Bhawan, Bhubaneswar District: Khordha.
2. Principal Chief Conservator of Forest, Odisha At: Aranya Bhawan, Bhubaneswar District: Khordha. ... Appellants (Opposite parties in the Writ Petition).
-VERSUS-
Pradipta Kumar Mohanty Aged about 60 years Son of Late Niranjan Mohanty At: Baranga, P.O.: Kotian, P.S.: Tirtol W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 1 of 78 District: Jagatsinghpur At present working as Deputy Ranger ... Respondent (Petitioner in the Writ Petition).
Counsel appeared for the parties:
For the Appellants : Mr. Ashok Kumar Parija, Advocate General and Mr. Manoj Kumar Khuntia, Additional Government Advocate For the Respondent : M/s. Swapnil Roy and Subhasish Satapathy, Advocates P R E S E N T:
HONOURABLE CHIEF JUSTICE MR. CHAKRADHARI SHARAN SINGH AND HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 08.05.2024 :: Date of Judgment : 11.12.2024 J UDGMENT MURAHARI SRI RAMAN, J.--
THE QUESTION FOR CONSIDERATION IN THE INTERLOCUTORY APPLICATION FILED PRAYING THEREIN TO CONDONE THE DELAY IN FILING THE INTRA-COURT APPEAL:W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 2 of 78
Whether this intra-Court of appeal is liable to be entertained by condoning delay of 450 days in filing the writ appeal by the functionaries of the Government of Odisha, being aggrieved by Order dated 20.01.2022 passed in W.P.(C) No.1239 of 2022, whereby and whereunder allowing the writ petition invoking power under Articles 226 and 227 of the Constitution of India a learned Single Judge of this Court directed the appellants herein (the opposite parties in the writ proceeding), to accord promotion to the respondent-writ petitioner to the rank of Forest Ranger with effect from 23.12.2016, i.e. the date his juniors and batch-mates got such promotions, on the ground that Vigilance Proceeding instituted in the year 2014 and Disciplinary Proceeding initiated in the year 2015 are yet to be concluded, is the question that falls for consideration of this Court.
THE FACTS:
2. As emanated from pleadings contained in the writ appeal as also the writ petition, the facts necessary for the present purpose of answering the question posed above are culled out hereinafter.
2.1. The respondent, appointed as the Village Forest Worker on 14.01.1985, got promotion to the post of the Forester in the Forest Department on 01.03.2009. Subsequently, W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 3 of 78 he was promoted to the rank of the Deputy Ranger vide Office Order No.43/2F-62/2014, dated 16.05.2014 issued from the Office of the Regional Chief Conservator of Forests, Sambalpur in pursuance of the Office Order No.611/2F (NG) 110/2013, dated 15.05.2014 of Principal Chief Conservator of Forests, Odisha, Bhubaneswar. Accordingly, the respondent joined on 21.05.2021 in the promotional post as in-Charge of Padampur Range as directed vide communication in Memo No.1704/2F-2014, dated 17.05.2014 issued from the Office of the Divisional Forest Officer, Bargarh Forest Division, Bargarh.
2.2. Tentative Gradation-cum-Disposition List of Deputy Ranger as on 01.08.2016 issued vide Memo No.14559/2F (NG) 39/2015, dated 30.07.2016 circulated by the Odisha State Forest Headquarters, Office of the Principal Chief Conservator of Forests, Bhubaneswar reflected the name of the respondent at Serial No.103 with the remark that "Vigilance Case Pending".
2.3. It is the case of the respondent before the writ Court (Single Bench) that as no charge-sheet had been served on him, objection was raised before the authority concerned against such Tentative Gradation List for modification. He put forth his grievance in the writ petition in the light of the fact that pending Vigilance W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 4 of 78 Proceeding in Sambalpur Vigilance P.S. Case No.84, dated 15.11.2014 and a Departmental Proceeding initiated vide Memorandum No.2840/2F-05/2015, dated 05.10.2015 on identical allegation, the name of the petitioner was not recommended for promotion to the rank of the Forest Ranger; nonetheless, the names of persons found place at Serial Nos. 154, 157, 158, 161, 163 and 164 of the Tentative Gradation List were given the promotion to the said rank vide Order dated 23.12.2016.
2.4. By filing writ petition on 12.01.2022 before this Court, the respondent sought to urge that while no charge had been framed in the Vigilance Proceeding by then and though the Enquiry Officer was appointed, no progress could be perceived in the Departmental Proceeding drawn up under Rule 15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962, he was not considered for the promotional post and he was due to get retired from service on 28.02.2022 on attaining the age of superannuation.
2.5. Citing parity with those of similarly circumstanced persons who got promotion pending Vigilance Case and/ or Departmental Proceeding, to illustrate the case of Dr. Sushama Barik Vrs. State of Odisha, W.P.(C) No. 21795 of 2021, disposed of vide Order dated 03.08.2021 by this Court, on the ground of no likelihood of disposal of such W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 5 of 78 proceedings in the near future, the respondent-writ petitioner made prayer for a direction to accord promotion in the rank of the Forest Ranger.
2.6. The learned Single Judge of this Court, having heard counsel for both the sides, considering length of pendency of the Vigilance Case since 2014 and the Disciplinary Proceeding since 2015, and the result of consideration for promotion of the respondent-writ petitioner being kept in sealed cover since 2016, held vide Order dated 20.01.2022 that the respondent cannot be made to suffer and consequently, directed to accord promotion which is, of course, made subject to outcome of aforesaid proceedings. Following are the concluding observations and directions of the learned Single Judge in the impugned Order:
"6. *** It is also not known when the Vigilance Proceeding initiated in the year 2014 will come to end. It is keeping in this view, this Court in disposal of the writ petition directs the Principal Secretary to Government of Odisha, Forest and Environment Department, Bhubaneswar-O.P. No.1 and Principal Chief Conservator of Forests, Odisha, opposite party No.2 to give promotions to the petitioner to the rank of Forest Ranger from 23.12.2016, i.e. from the date of his juniors and batchmates got such promotions. However the promotions of the petitioner as per direction of this Court shall be subject to the ultimate outcome in the Vigilance Proceeding and Disciplinary Proceeding. Further it is also clarified that the W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 6 of 78 promotions given to the petitioner to different ranks shall not confer equity in the event, he will ultimately lose the Vigilance Proceeding and Disciplinary Proceeding. Entire exercise shall be completed within four weeks from the date of communication of this direction. It is also clarified that upon promotions, petitioner shall also be entitled to all consequential benefits.
7. With the above observation and directions, the writ petition thus stands disposed of."
2.7. Aggrieved, the functionaries of the State of Odisha approached by way of filing the intra-Court appeal on appraising that cognizance of offence has been taken since 01.09.2015, and took plea that giving promotion at this stage to the respondent would tantamount to granting reward, which runs counter to the view expressed in Union of India Vrs. K.V. Jankiraman, (1991) 4 SCC 409.
2.8. It has been pointed out by the Registry of this Court that having presented the writ appeal on 15.05.2023, there occurred delay of 450 days from the date of impugned Order, i.e., 20.01.2022 excluding the period of limitation of 30 days as stipulated under Rule 2 of Chapter VIII of the Rules of the High Court of Orissa, 1948. Along with presentation of the writ appeal, the respondent filed an application, being I.A. No.2585 of 2023.
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 7 of 782.9. The respondent, upon being served with a notice on the point of limitation issued by this Court pursuant to Order dated 09.04.2024, appeared through counsel and filed objection to the petition for condonation of delay by contending that inordinate delay in preferring writ appeal deserves to be dismissed in limine in view of principles laid down by this Court in State of Odisha Vrs. Surama Manjari Das, W.P.(C) No.15763 of 2021, dismissed on 16.07.2021 inasmuch as leave to appeal being S.L.P.(C) Dy. No.9259 of 2023 filed at the behest of the State of Odisha got dismissed by the Supreme Court vide Order dated 05.04.2023.
HEARING OF THE INTERLOCUTORY APPLICATION FILED IN THE WRIT APPEAL BY THE APPELLANTS FOR CONDONATION OF DELAY:
3. This matter was taken up for hearing on the point of limitation on 08.05.2024. Heard Sri Ashok Kumar Parija, learned Advocate General assisted by Sri Manoj Kumar Khuntia, learned Additional Government Advocate for the appellants and Sri Swapnil Roy, learned Advocate for the respondent.
3.1. On conclusion of hearing, permission being sought for and granted, Sri Swapnil Roy, learned Advocate for the respondent furnished copies of Judgments rendered by the Hon‟ble Supreme Court of India in the cases of Pathupati Subba Reddy Vrs. Special Deputy Collector, (2024) 4 SCR 241 and Union of India Vrs. Jahangir W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 8 of 78 Byramji Jeejeebhoi, (2024) 4 SCR 76 on 09.05.2024 to buttress his argument that length of delay is a relevant factor for consideration of application under Section 5 of the Limitation Act, inasmuch as there ought to be end to a litigation and, thereby he sought to counter the submissions made by the learned Advocate General that inordinate days of delay in filing appeal by the State can be condoned on the principles laid down in Collector, Land Acquisition, Anantnag Vrs. Mst. Katiji, (1987) 2 SCC 107; G. Ramegowda, Major Vrs. Special Land Acquisition Officer, (1988) 2 SCC 142; State of Haryana Vrs. Chandra Mani, (1996) 3 SCC 132; Sheo Raj Singh Vrs. Union of India, (2023) 10 SCC 531; and Bhubaneswar Development Authority, (2023) 6 SCR 590.
THE RIVAL CONTENTIONS AND SUBMISSIONS:
4. Sri Ashok Kumar Parija, learned Advocate General made his submission that learned Single Judge has directed to grant promotion to the respondent notwithstanding the fact that both the Vigilance Case as also the Disciplinary Proceeding are pending against him. As such direction runs contrary to Judgments of this Court delivered by a Division Bench in Joseph Barik, 2023 (II) ILR-CUT 361, this intra-Court appeal has been preferred, wherein the following is the observation:
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 9 of 78"1. In all these writ appeals by the State of Odisha against the corresponding orders of the learned Single Judge, a common question arises for consideration viz. whether during the pendency of a criminal case against the Government servant in the Court of the Special Judge (Vigilance), and notwithstanding exoneration of the said employee in the departmental proceedings, could the learned Single Judge have ordered grant of either ad hoc or regular promotion to the government servant subject to the outcome of the criminal proceedings?
***
9. Further in terms of the law explained by the Supreme Court in Union of India Vrs. K.V. Janaki Raman (1991) 4 SCC 109, State of Punjab Vrs. Chamanlal Goel (1995) 2 SCC 570, the judgment of this Court dated 5th October, 2016 in W.P.(C) No.19909 of 2015 (State of Odisha Vrs. Somanath Sahoo) and the judgment dated 26th April, 2017 in W.P.(C) No.22393 of 2015 (State of Odisha Vrs. Anil Kumar Sethi), there is no right of the government servant to be considered for promotion during the pendency of either departmental proceedings or criminal proceedings or both against such Government servant.
10. The plea of the learned counsel appearing for the Respondents that they should be granted at least one „ad hoc promotion‟ is also without any legal basis in light of the above OMs and the settled position in law.
11. It is clarified that as and when the criminal proceedings end in favour of the government servant W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 10 of 78 by way of an acquittal and such Government servant also stands exonerated from the departmental proceedings then notwithstanding the superannuation of such Government servant, the notional benefits attaching to the promotion that is due to the government servant would be calculated and the pension fixed accordingly.
12. In the light of the above orders of the Government, it is not possible for this Court to sustain the impugned orders of the learned Single Judge in the present cases directing the Appellants to grant regular promotion to the Respondents even with the caveat that such promotion would be subject to the outcome of the criminal case against such government servant. The said impugned orders of the learned Single Judge are accordingly hereby set aside."
4.1. It is submitted that identical question also fell for consideration before a Division Bench of this Court in a writ appeal being The Principal Secretary, Panchayat Raj Department, Government of Odisha Vrs. Debi Prasad Nanda, W.A. No. 16 of 2024, wherein by condoning the delay of 100 days in filing of appeal preferred by the Government of Odisha, an Order has been passed with the following observation on 06.03.2024:
"9. From this Court‟s judgment in case of State of Odisha & another Vrs. Joseph Barik (supra), we find that the coordinate Bench decisions of this Court in case of State of Odisha Vrs. Anil Kumar Sethi (supra) and State of Odisha Vrs. Somanath Sahoo (supra) have been taken note of and considered before W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 11 of 78 reaching a conclusion that a government servant did not have any right to be considered for promotion during the pendency, either of department proceeding or a criminal proceeding.
10. As the said decisions have been taken into consideration by the division bench, we do not find it to be a case fit for reference to a larger Bench.
11. This appeal is accordingly allowed. The impugned order dated 08.09.2023 of the learned Single Judge is hereby set aside. W.P.(C) No.20344 of 2021 is, hereby, dismissed.
12. It goes without saying that the respondent shall be at liberty to take such steps as may be available to him under law for expediting the trial."
4.2. It is further argued that thus being the answer to the question of law, the present case having resemblance of said proposition of law, the delay caused, may appear to be inordinate in preferring the writ appeal, deserves consideration of this Court for condonation and as a consequence thereof, the decision of learned Single Judge, being inconsistent with the view of the Division Bench, requires intervention.
4.3. Proceeding with his argument further, Sri Ashok Kumar Parija, learned Advocate General being assisted by Sri Manoj Kumar Khuntia, learned Additional Government Advocate, submitted that the decision rendered by this Court in the case of State of Odisha Vrs. Surama Manjari W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 12 of 78 Das, W.P.(C) No.15763 of 2021, dismissed on 16.07.2021 read with corrigendum of cause title vide Order dated 14.10.2022, as relied on by the respondent in his objection affidavit to the interlocutory application for condonation of delay, would not come to his aid.
4.4. Though said case in Surama Manjari Das (supra) proceeded "on the ground of laches" (as distinguished from "delay") on the part of the State Government in approaching this Court by way of filing writ petition on 27.04.2021 challenging the Order dated 26.02.2019 passed by the Odisha Administrative Tribunal, the ratio of said case is to be considered in the peculiar fact and circumstance as it seems from paragraph 1 of said Order:
"The petitioner has challenged the Order dated 26.02.2019 passed by Odisha Administrative Tribunal, Bhubaneswar in O.A. No.767 of 2019. The present writ application was filed on 27.04.2021, more than two years after the impugned order was passed, yet there is neither an application for condonation of delay nor any explanation for such delay in filing the writ application."
4.5. Such being the fact that there was no explanation offered by the Government with respect to delay in invoking writ jurisdiction, said decision in Surama Manjari Das (supra) is misplaced, particularly when the respondent in his objection misdirected himself as if said W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 13 of 78 decision has been "confirmed by the Hon‟ble Apex Court vide Order dated 05.04.2023 passed in S.L.P.(C) Diary No. 9259 of 2023" in view of the legal position settled in Kunhayammed Vrs. State of Kerala, AIR 2000 SC 2587 = (2000) 6 SCC 359.
4.6. Therefore, it is urged that, Surama Manjari Das (supra) cannot be referred to as precedent in order to decide the present nature of the case. When strong case is made out on merits having glaring question of law which has already been set at rest by this Court in Joseph Barik (supra), reference can be had to the Order dated 22.11.2019 passed by the Hon‟ble Supreme Court in the case of State of Odisha Vrs. Ratikanta Tripathy, Special Leave Petition (Civil) Diary No.33245 of 2028, wherein the following observation was made even after noticing the fact of delay of 800 days in filing SLP:
"Relying on the aforesaid observations, it is submitted that the only right that was saved was to receive the block grant and only in case the grant-in-aid was received on or before the repeal of the Order of 2004. It is further submitted that the decision of the High Court in Loknath Behera was approved by this Court. Exactly contrary situation has now been accepted by the High Court in the orders presently under appeal. We must however state that the matters were disposed of by the High Court as the petition in every case was delayed by at least 800 days. In the circumstances, we pass following order:
a) Delay condoned.W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 14 of 78
Subject to the petitioner-State depositing a sum of Rs.50,000/- (Rupees fifty thousand only), to the account of every petition in the Registry of this Court within four weeks from today, let notices be issued to the respondents, returnable on 13.01.2020.
Dasti service, in addition, is permitted.
b) If the amount is not deposited within the stipulated time, the special leave petitions shall stand dismissed without further reference to the Court.
c) Upon deposit, the amount shall be invested in a fixed deposit receipt with a nationalized bank initially for a period of 90 days with auto renewal facility."
4.7. Having placed reliance on the case laws, Sri Ashok Kumar Parija, learned Advocate General submitted that once the law has been settled by this Court that promotion, being not a matter of right, cannot be granted to an employee who is facing criminal charges before the court of law and the disciplinary proceeding, which are yet to attain logical end. So, in such cases, delay in filing appeal is liberally to be construed and the State Government cannot be made to suffer, as rule of law must prevail at any cost. With the justice oriented approach, the test to be undertaken by the Court is necessarily based on merit and in public interest. The discretion in condoning the delay, be it inordinate, is to be weighed looking at the merit of the matter to meet the ends of justice. If the scales of balance are not utilized in W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 15 of 78 favour of the State in the present context, it would tantamount to negating the law laid down by the Division Benches of this Court.
4.8. Aggrieved by not affording opportunity to file counter affidavit in the writ proceeding, stemming on Ground (E) of the writ appeal read with paragraph 3 of the petition for condonation of delay, it is submitted that the appellants could not place on record the Office Memorandum bearing No.3928-SC-/3-2/93-Gen., dated 18.02.1994; No.14640-Gen., dated 04.07.1995; No.29699-SC-3-5/97-Gen., dated 01.11.1997; No.1598- SC-3-5/98-Gen., dated 15.01.1999 of the General Administration Department dealing with sealed cover procedure in case of promotion during pendency of the criminal case and the disciplinary proceeding. It is, therefore, urged that had these instructions been brought to the notice of the learned Single Judge, the decision would have been otherwise.
4.9. Sri Ashok Kumar Parija submitted that the interest of the respondent is completely protected by the Office Memorandum dated 18.02.1994, which reads as follows:
"3. Promotion of officers to the various posts/services.--
At the time of consideration of cases of officers for promotion, details of such officers in the zone of consideration falling under the following categories W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 16 of 78 should be specifically brought to the notice of the concerned Screening Committee:
(i) Government servants under suspension
(ii) Government servants in respect of whom a charge-sheet has been issued and disciplinary proceeding are pending, and
(iii) Government servants in respect of whom prosecution for criminal charge is pending ***
4. The Screening Committee shall assess the suitability of the officers coming within the purview of the circumstances mentioned in Para 2 above, along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution which is pending. The assessment of the Screening Committee including "Unfit for Promotion" and the grading awarded by It will be kept in a sealed cover. The cover will be superscribed „FINDINGS REGARDING THE SUITABILITY FOR PROMOTION TO THE POST/SERVICE OF ________ IN RESPECT OF SHRI (NAME OF THE OFFICER)‟; „NOT TO BE OPENED TILL THE TERMINATION OF THE DISCIPLINARY CASE/CRIMINAL PROSECUTION AGAINST SHRI _______‟. The proceedings of the Screening Committee need only contain the note. „The findings are contained in the attached sealed cover‟.
5. The same procedure outlined in Para 3 above will be adopted by the subsequent Screening Committees convened till the disciplinary W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 17 of 78 case/criminal prosecution against the officer concerned is concluded
6. On the conclusion of the disciplinary case/ criminal prosecution, the sealed cover or covers shall be opened. In case the officer is completely exonerated, the due date of his promotion will be determined with reference to the findings of the Screening committee kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such findings. The Government servant may be promoted, if necessary, by reverting the junior-most officiating person. He may be promoted notionally with reference to the date of promotion of his junior In cases of complete exoneration, the officer will also be paid arrears of salaries and allowances In other cases, the question of arrears will be decided by the State Government by taking into consideration all the facts and circumstances of the disciplinary/ criminal proceedings, but where the Government denies arrears of salary or a part of it, the reasons for doing so shall be recorded.
7. If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next Screening Committee in the normal course and having regard to the penalty imposed on him.W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 18 of 78
***"
4.10. It is brought to the notice that in the case of State of Odisha Vrs. Chakradhar Prasad Gantayat, W.A No.321 of 2022, vide Judgment dated 20.03.2024, referring to the decisions in Joseph Barik (supra) and The Principal Secretary, and Panchayatraj Department, Government of Odisha (supra) as also taking note of the Office Memorandum dated 04.07.1995, which deals with granting ad hoc promotion subject to certain conditions laid down therein during the pendency of protracted criminal and/or disciplinary proceeding, this Court in Division Bench negatived the direction of the learned Single Judge that "Consequentially, this Court direct the opposite party to open the sealed cover and extend the benefit of promotion to the petitioner, if he has otherwise entitled to get the same, with all consequential benefits with effect from the date his immediate junior has been given promotion to the next higher post".
4.11. Thus being the view, it is emphasised that the delay in filing the writ appeal be condoned and the matter is required to be considered on merits in its own perspective.
5. Sri Swapnil Roy, learned Advocate for the respondent with vehemence argued that no plausible explanation has been given by the State of Odisha in its interlocutory W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 19 of 78 application demonstrating "sufficient" and "reasonable" cause. Placing reliance on Surama Manjari Das (supra) it is submitted by him that this Court referring to certain decisions of the Hon‟ble Supreme Court of India more particularly State of Madhya Pradesh Vrs. Bherulal, 2020 SCC OnLine SC 849, wherein Chief Post Master General Vrs. Living Media India Ltd., (2012) 3 SCC 563 was quoted in extenso, held that two years delay in filing writ petition against Order of the Odisha Administrative Tribunal is not liable to be condoned. On the same analogy, in the present case, no sufficient and reasonable cause being shown by the appellants- functionaries of the State of Odisha in the petition for condonation of delay, there is no scope left than to adhere to what has been directed by the learned Single Judge while disposing of the writ petition. It is submitted that the learned Single Judge in the right earnest appreciated the plight of the respondent, who was deprived of promotion, notwithstanding his juniors got promoted to the higher rank. The specious plea of the appellants that pendency of the Vigilance Case and the Disciplinary Proceeding could restrain them from granting promotion to the respondent is liable to be rejected.
5.1. Sri Swapnil Roy, learned Advocate laying emphasis on the fact of inordinate delay, that too without any W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 20 of 78 explanation in the interlocutory application, submitted that a contempt petition, registered as CONTC No.1898 of 2022, was filed alleging non-compliance of the Order dated 20.01.2022 of the learned Single Judge in W.P.(C) No.1239 of 2022. Said contempt petition was disposed of with the assurance of the counsel for the Government that the direction contained therein would be carried out without delay. However, since nothing could come out successful, the respondent was constrained to approach this Court again by way of another contempt application, registered as CONTC No.317 of 2023.
5.2. It has been submitted that the appellants have not only failed to comply with the direction of the learned Single Judge, but also overstepped the periods stipulated in the impugned Order dated 20.01.2022 passed in W.P.(C) No.1239 of 2022 and also the Order dated 08.04.2022 passed in the first contempt petition being CONTC No.1898 of 2022. As the authorities did not budge an inch even as the respondent got retired on attaining superannuation in the meanwhile, finding no alternative second contempt application was filed, wherein the following Order was passed on 12.05.2023:
"As a last chance, list this matter on 30.06.2023 as requested by the learned counsel appearing for the Contemnors for enabling him to take instruction with regard to compliance of order passed by this Court."W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 21 of 78
5.3. After such order passed by the learned Single Judge in the contempt proceeding, within three days thereafter, i.e., 15.05.2023, the writ appeal has been filed after 480 days of disposal of the writ petition.
5.4. He, therefore, referring to fact stated at paragraph 5 of the petition for condonation of delay that the appellants "had to obtain opinion and approval from several quarters before filing of the present writ appeal in accordance with Government of Odisha Rules of Business and due to such administrative exigencies", strenuously argued that such plea has no foundation as such averment has been made without providing any material particulars. Such averment being bald, terse and unintelligible is liable to be discarded at the threshold.
5.5. The move of the appellants is only to frustrate the effect of direction contained in the Order dated 20.01.2022 passed in W.P.(C) No.1239 of 2022. It is apparent from the contents of the writ appeal and the averments made in the interlocutory application that the appeal has been preferred only to avoid rigours of contempt under the Contempt of Courts Act, 1971, with full knowledge of the fact that by the time writ appeal gets filed the respondent would have already attained the age of superannuation and retired on 28.02.2022.
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 22 of 785.6. Under such premises, Sri Swapnil Roy, learned Advocate for the respondent has prayed to dismiss the petition for condonation of delay and consequently, urged not to entertain the writ appeal being barred by limitation.
PROVISIONS REGARDING WRIT APPEAL AND THE PROVISIONS FOR LIMITATION:
6. The writ appeal before this Court has been filed invoking provisions of Clause 10 of the Letters Patent Constituting the High Court of Judicature at Patna, which stands thus:
"Civil Jurisdiction of the High Court
9. And We do further ordain that the High Court of Judicature at Patna shall have power to remove and to try and determine, as a Court of extraordinary original Jurisdiction, any suit being or falling within the jurisdiction of any Court subject to its superintendence, when the said High Court may think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court.
10. And We do further ordain that an appeal shall lie to the said High Court of Judicature at Patna from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 23 of 78 being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of Government of India Act and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made (on or after the first day of February one thousand nine hundred and twenty nine) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided."
6.1. Article 4 of the Odisha High Court Order, 1948 stands as follows:
"The High Court of Orissa shall have, in respect of the territories for the time being included in the Province of Orissa, all such original, appellate and other jurisdiction as under the law in force immediately before the prescribed day is exercisable in respect of the said territories or any part thereof by the High Court in Patna."W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 24 of 78
6.2. Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Odisha, 1948, are given hereunder:
"Chapter-III
6. Appeals to the High Court under Article 4 of the Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent Constituting the High Court of Judicature at Patna from the Judgment of a Bench confirming the judgment of a lower Court under Section 98 of the Code of Civil Procedure shall be heard by a Bench consisting of at least three Judges including both or either of the Judges of the Bench from whose Judgment the appeal is preferred and, if from the judgment of one Judge or a Bench of two Judges, it shall be heard by a Bench consisting of at least two Judges other than the Judge from whose judgment the appeal is preferred.
Chapter-VIII
2. (1) Subject to Article 12 of the Orissa High Court Order, 1948 every appeal to the High Court under Article 4 thereof read with Clause 10 of the Letters Patent Constituting the High Court of Judicature at Patna from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the Superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 25 of 78 exercise of criminal jurisdiction) of one Judge of the High Court or one Judge of any Division Court pursuant to Article 225 of the Constitution, shall be presented to the Registrar within thirty days from the date of the judgment appealed from unless a Bench in its discretion, on good cause shown, shall grant further time. The Registrar shall endorse on the memorandum the date of presentation and after satisfying himself that the appeal is in order and is within time shall cause it to be laid before a Bench for orders at an early date. It shall be accompanied by a certified copy of the judgment appealed from together with a neatly typed second copy thereof.
(2) Subject to Article 12 of the Orissa High Court Order, 1948 every application for a Certificate under Article 4 thereof read with Clause 10 of the Letters Patent Constituting the High Court of Judicature at Patna in the case of a judgment of a Single Judge of the Court deciding a second appeal shall be made orally to the Judge in question immediately after the judgment is delivered. No subsequent application will be entertained unless upon a duly stamped special application supported by affidavit filed within thirty days and not more from the date of the judgment the Judge is satisfied that circumstances existed rendering an immediate application impossible.
(3) If the Judge certifies that the case is a fit one for appeal a duly stamped memorandum of W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 26 of 78 appeal may be presented to the Registrar within a period not exceeding sixty days from the date of the judgment unless the Judge in his discretion on good cause shown shall grant further time for its presentation.
(4) The memorandum of appeal need not be accompanied by a copy of the judgment of decree appealed from."
ANALYSIS:
7. Above provisions would go to indicate that the writ appeal under Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna is required to be presented before this Court within thirty days from the date of the judgment appealed from as provided for in Rule 2 of Chapter-VIII of the Rules of the High Court of Orissa, 1948. In the event the appeal is not preferred within the said stipulated period, it is the Bench which is empowered to use its discretion to "grant further time", subject to, of course, appreciation of "good cause".
7.1. Nevertheless, with the contents contained in the petition, bearing I.A. No.2585 of 2023, praying therein to condone "the delay caused in filing the writ appeal", this Court now examines whether with the available material on record as provided by the State of Odisha in said petition "discretion" can be exercised to condone the delay in W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 27 of 78 preferring intra-Court appeal for "good cause" shown by the appellants. Finding good cause shown, this Court by exercising discretion may condone the delay in filing the writ appeal by granting "further time".
7.2. Conspectus of propositions of catena of decisions rendered by different Courts indicates that "discretion" means use of private and independent thought. When anything is left to be done according to one‟s discretion the law intends it to be done with sound discretion and according to law. Discretion is discerning between right and wrong and one who has power to act at discretion is bound by rule of reason. Discretion must not be arbitrary. The very term itself stands unsupported by circumstances imports the exercise of judgment, wisdom and skill as contra-distinguished from unthinking folly, heady violence or rash injustice. When applied to a Court of Justice or Tribunal or quasi judicial body, it means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular. Discretion must be exercised honestly and in the spirit of the statute. It is the power given by a statute to make choice among competing considerations. It implies power to choose between alternative courses of action. It is not unconfined and vagrant. It is canalized within banks that keep it from overflowing. It is to be, not arbitrary, W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 28 of 78 vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself. [See, Kumaon Mandal Vikas Nigam Ltd. Vrs. Girja Shankar Pant, (2001) 1 SCC 182].
7.3. In this regard, therefore, the interpretation of the expression "sufficient cause" as found in the provisions of Section 5 of the Limitation Act has bearing on the question that is involved in the instant case.
7.4. It needs to be discussed the connotation of "good cause"
vis-à-vis "sufficient cause". In Arjun Singh Vrs. Mohindra Kumar, (1964) 5 SCR 946, these two terms have been considered as follows:
"Before proceeding to deal with the arguments addressed to us by Mr. Setalvad-- learned counsel for the appellant, it would be convenient to mention a point, not seriously pressed before us, but which at earlier stages was thought to have considerable significance for the decision of this question viz., the difference between the words „good cause‟ for non-appearance in Order IX, Rule 7 and „sufficient cause‟ for the same purpose in Order IX, Rule 13 as pointing to different criteria of „goodness‟ or „sufficiency‟ for succeeding in the two proceedings, and as therefore furnishing a ground for the inapplicability of the rule of res judicata. As this ground was not seriously mentioned before us, we need not examine it in any detail, but we might observe that we do not see any material difference between the facts to be established for satisfying the two tests of 'good W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 29 of 78 cause' and 'sufficient cause'. We are unable to conceive of a 'good cause' which is not 'sufficient' as affording an explanation for non-appearance, nor conversely of a 'sufficient cause' which is not a good one and we would add that either of these is not different from 'good and sufficient cause' which is used in this context in other statutes. If, on the other hand, there is any difference between the two it can only be that the requirement of a „good cause‟ is complied with on a lesser degree of proof than that of „sufficient cause‟ and if so, this cannot help the appellant, since assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the court finds in the first proceeding, the lighter burden not discharged, it must a fortiori bar the consideration of the same matter in the later, where the standard of proof of that matter is, if anything, higher."
7.5. In Basawaraj Vrs. Special Land Acquisition Officer, (2013) 14 SCC 81 the Supreme Court summarised the law on the issue in the following way:
"The law on the issue can be summarised 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 W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 30 of 78 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."
7.6. The meaning of „sufficient‟ is „adequate‟ or „enough‟, inasmuch as may be necessary to answer the purpose intended. Therefore, word „sufficient‟ embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. „Sufficient cause‟ means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been „not acting diligently‟ or „remaining inactive‟. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. While deciding whether there is sufficient cause or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 31 of 78 Court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. "Sufficient cause" is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the Court with a reasonable defence. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application. [Ref.: Ramlal, Motilal and Chhotelal Vrs. Rewa Coalfields Ltd., AIR 1962 SC 361 = (1962) 2 SCR 762; Lonard Grampanchayat Vrs. Ramgiri Gosavi, AIR 1968 SC 222; Surinder Singh Sibia Vrs. Vijay Kumar Sood, (1992) 1 SCC 70; Orinental Aroma Chemical Industries Ltd. Vrs. Gujarat Industrial Development Corporation, (2010) 5 SCC 459; Parimal Vrs. Veena, (2011) 3 SCC 545; Sudarshan Sareen Vrs. National Small Industries Corporation Ltd., 2013 SCC OnLine Del 4412; State of Bihar Vrs. Kameshwar Prasad Singh, (2000) 9 SCC 94; Madanlal Vrs. Shyamlal, (2002) 1 SCC 535; Davinder Pal Sehgal Vrs. Partap Steel Rolling Mills (P) Ltd., (2002) 3 SCC 156; Ram Nath Sao Vrs. Gobardhan Sao, (2002) 3 SCC 195, Kaushalya Devi Vrs. Prem Chand, (2005) 10 SCC 127, Srei International Finance Ltd. Vrs. Fairgrowth Financial Services Ltd., (2005) 13 SCC 95; Reena Sadh Vrs. Aniana Enterprises, (2008) 12 SCC 589].
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 32 of 787.7. "Sufficient cause" has to be construed as an elastic expression for which no hard-and-fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. [Ref.: G.P. Srivastava Vrs. R.K. Raizada, (2000) 3 SCC 54; A. Murugesan Vrs. Jamuna Rani, (2019) 20 SCC 803]. The Court, in its discretion, has to consider the „sufficient cause‟ in the facts and circumstances of every individual case. Although in interpreting the words „sufficient cause‟, the Court has wide discretion but the same has to be exercised in the particular facts of the case. See, Hira W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 33 of 78 Sweets & Confectionary Pvt. Ltd. Vrs. Hira Confectioners, 2021 SCC OnLine Del 1823.
7.8. In Balwant Singh Vrs. Jagdish Singh, (2010) 8 SCR 597 the ingredients of "sufficient cause" for the purpose of condonation of delay has been discussed as follows:
"7. *** However, in terms of Section 5, the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows „sufficient cause‟ for not preferring the application within the prescribed time. The expression „sufficient cause‟ commonly appears in the provisions of Order 22 Rule 9(2), CPC and Section 5 of the Limitation Act, thus categorically demonstrating that they are to be decided on similar grounds. The decision of such an application has to be guided by similar precepts.
***
8. In the case of P.K. Ramachandran Vrs. State of Kerala, (1997) 7 SCC 556 where there was delay of 565 days in filing the first appeal by the State, and the High Court had observed, „taking into consideration the averments contained in the affidavit filed in support of the petition to condone the delay, we are inclined to allow the petition".
While setting aside this order, this Court found that the explanation rendered for condonation of delay was neither reasonable nor satisfactory and held as under:
„3. It would be noticed from a perusal of the impugned order that the court has not recorded W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 34 of 78 any satisfaction that the explanation for delay was either reasonable or satisfactory, which is an essential prerequisite to condonation of delay.
4. That apart, we find that in the application filed by the respondent seeking condonation of delay, the thrust in explaining the delay after 12.5.1995 is:
„*** at that time the Advocate General‟s office was fed up with so many arbitration matters (sic) equally important to this case were pending for consideration as per the directions of the Advocate General on 2.9.1995.‟
5. This can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. In the reply filed to the application seeking condonation of delay by the appellant in the High Court, it is asserted that after the judgment and decree was pronounced by the learned Sub-Judge, Kollam on 30.10.1993, the scope for filing of the appeal was examined by the District Government Pleader, Special Law Officer, Law Secretary and the Advocate General and in accordance with their opinion, it was decided that there was no scope for filing the appeal but later on, despite the opinion referred to above, the appeal was filed as late as on 18.1.1996 without disclosing why it was being filed. The High Court does not appear to have examined the reply filed by the appellant as reference to the same is conspicuous by its absence from the order. We are not satisfied W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 35 of 78 that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one had been offered by the respondent-State for condonation of the inordinate delay of 565 days.
6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. No costs.‟ ***
10. Another Bench of this Court in a recent judgment of Katari Suryanarayana Vrs. Koppisetti Subba Rao, AIR 2009 SC 2907 again had an occasion to construe the ambit, scope and application of the expression „sufficient cause‟. The application for setting aside the abatement and bringing the legal heirs of the deceased on record was filed in that case after a considerable delay. The explanation rendered regarding the delay of 2381 days in filing the application for condonation of delay and 2601 days in bringing the legal representatives on record was not found to be satisfactory. Declining the application for condonation of delay, the Court, while W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 36 of 78 discussing the case of Perumon Bhagvathy Devaswom Vrs. Bhargavi Amma, (2008) 8 SCC 321 in its para 9 held as under:
„11. The words „sufficient cause for not making the application within the period of limitation‟ should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words „sufficient cause‟ in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.‟ ***
15. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom Vrs. Bhargavi Amma, (2008) 8 SCC 321.
In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Court held as under:
„(i) The words „sufficient cause for not making the application within the period of limitation‟ W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 37 of 78 should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words „sufficient cause‟ in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona tides, deliberate inaction or negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 38 of 78 than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification of defects.
(iv) Want of „diligence‟ or „inaction‟ can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal. ***
16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 39 of 78 condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications."
7.9. In the case of Pundlik Jalam Patil Vrs. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, it is observed as under:
"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 40 of 78 tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."
7.10. The Hon‟ble Supreme Court of India investigated if "to condone, or not to condone" four days‟ delay, besides examining as to "whether or not to apply the same standard in applying the „sufficient cause‟ test to all the litigants regardless of their personality" in Collector, Land Acquisition, Anantnag Vrs. Mst. Katiji, (1987) 2 SCC 107 = (1987) 2 SCR 387 and laid down the following dicta:
"The Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on „merits‟. The expression „sufficient cause‟ employed by the Legislature is adequately elastic to enable the Courts 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 Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 41 of 78 against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. „Every day‟s delay must be explained‟ does not mean that a pedantic approach should be made.
Why not every hour‟s delay, every second‟s delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the „State‟ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 42 of 78 warrant for according a step-motherly treatment when the „State‟ is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression „sufficient cause‟. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits."
7.11. Discussing the scope and discretion of the Court in condoning the substantial delay caused in filing appeal by the State in G. Ramegowda Major Vrs. Special Land Acquisition Officer, (1988) 2 SCC 142 the Hon‟ble Supreme Court of India observed as follows:
"15. In litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 43 of 78
16. The law of limitation is, no doubt, the same for a private citizen as for Governmental- authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it.
17. Therefore, in assessing what, in a particular case, constitutes „sufficient cause‟ for purposes of Section 5 it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have „a little play at the joints‟. Due recognition of these limitations on Governmental functioning-- of course, within a reasonable limits-- is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law-officers of the W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 44 of 78 Government placed the Government in a predicament and that it was one of these cases where the mala fides of the officers should not be imputed to Government. It relied upon and trusted its law-officers. Lindley, M.R., in the In re: National Bank of Wales Ltd., LR 1899 2 Ch. 629 @ 673 observed, though in a different context:
„Business cannot be carried on, upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them.‟ In the opinion of the High Court, it took quite sometime for the Government to realise that the law- officers failed that trust.
18. While a private person can take instant decision a 'bureaucratic or democratic organ' it is said by a learned Judge 'hesitates and debates, consults and considers, speaks through paper, moves horizontally and vertically till at last it gravitates towards a conclusion, unmindful of time and impersonally.' ***"
7.12. In absence of showing deliberate delay as a dilatory tactic, the manner of use of discretion in favour of condonation of delay in filing appeal by the State machinery with due regard to „sufficient cause‟ has been enumerated in N. Balakrishnan Vrs. M. Krishnamurty, (1998) 7 SCC 123 in the following terms:
"8. The Appellant‟s conduct does not on the whole warrant to castigate him as an irresponsible litigant.
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 45 of 78What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.
9. 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. Sometimes 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 explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court.
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 46 of 7810. The reason for such a different stance is thus:
The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result foreclosing a suitor from putting forth his W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 47 of 78 cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words „sufficient cause‟ under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vrs. Kuntal Kumari, AIR 1969 SC 575 = (1969) 1 SCR 1006 and State of West Bengal Vrs. The Administrator, Howrah Municipality, AIR 1972 SC 749 = (1972) 1 SCC 366.
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss."
7.13. While enunciating that pragmatism in justice oriented approach is to be shown by the Court having regard to the impersonal bureaucratic set up involved in red-
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 48 of 78tapism within reasonable limits of time, the Hon‟ble Supreme Court propounded to hold officer concerned personally responsible in the case of State of Haryana Vrs. Chandra Mani, (1996) 3 SCC 132 and the proposition of legal position stands thus:
"It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court-- be it by private party or the State-- are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file- pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on 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, W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 49 of 78 is public interest. The expression 'sufficient cause' should, therefore, be considered with pragmatism in 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 process. 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 require adjustment and should authorise the officers 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 State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay."
7.14. It is significant to notice the decision of the Hon‟ble Supreme Court of India rendered in the case of Sheo Raj Singh (deceased) through Legal Representatives Vrs.
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 50 of 78Union of India, (2023) 10 SCC 531 wherein while explaining the term "sufficient cause", the nature of approach of the Court and the methodology in deciding the application for condonation of delay have been discussed with reference to earlier precedents. The said Court in the mentioned reported case held as follows:
"30. Considering the aforementioned decisions, there cannot be any quarrel that this Court has stepped in to ensure that substantive rights of private parties and the State are not defeated at the threshold simply due to technical considerations of delay. However, these decisions notwithstanding, we reiterate that condonation of delay being a discretionary power available to Courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial.
31. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. Of course, the Courts must distinguish between an 'explanation' and an 'excuse'. An „explanation‟ is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 51 of 78 taken to distinguish an 'explanation' from an 'excuse'. Although people tend to see „explanation‟ and „excuse‟ as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real.
32. An „excuse‟ is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an „excuse‟ would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure that a meritorious claim does not reach the higher Courts for adjudication.
***
34. The order under challenge in this appeal is dated 21st December 2011. It was rendered at a point of time when the decisions in Mst. Katiji (supra), Ramegowda (supra), Chandra Mani (supra), Tehsildar (LA) Vrs. K.V. Ayisumma, (1996) 10 SCC 634 and State of Nagaland Vrs. Lipok AO, (2005) 3 SCC 752 were holding the field. It is not that the said decisions do not hold the field now, having been overruled by any subsequent decision. Although there have been some decisions in the recent past [State of M.P. Vrs. Bherulal, (2020) 10 W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 52 of 78 SCC 654 is one such decision apart from University of Delhi Vrs. Union of India, (2020) 13 SCC 745] which have not accepted governmental lethargy, tardiness and indolence in presenting appeals within time as sufficient cause for condonation of delay, yet, the exercise of discretion by the High Court has to be tested on the anvil of the liberal and justice oriented approach expounded in the aforesaid decisions which have been referred to above.
***
40. We can also profitably refer to State of Manipur Vrs.
Koting Lamkang, (2019) 10 SCC 408 ... where the same Bench of three Hon‟ble Judges of this Court which decided University of Delhi Vrs. Union of India, (2020) 13 SCC 745 was of the view that the impersonal nature of the State‟s functioning should be given due regard, while ensuring that individual defaults are not nit-picked at the cost of collective interest. The relevant paragraphs read as follows:
„7. But while concluding as above, it was necessary for the Court to also be conscious of the bureaucratic delay and the slow pace in reaching a Government decision and the routine way of deciding whether the State should prefer an appeal against a judgment adverse to it. Even while observing that the law of limitation would harshly affect the party, the Court felt that the delay in the appeal filed by the State, should not be condoned.W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 53 of 78
8. Regard should be had in similar such circumstances to the impersonal nature of the Government‟s functioning where individual officers may fail to act responsibly. This in turn, would result in injustice to the institutional interest of the State. If the appeal filed by the State are lost for individual default, those who are at fault, will not usually be individually affected.‟
41. Having bestowed serious consideration to the rival contentions, we feel that the High Court‟s decision to condone the delay on account of the first respondent‟s inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests."
7.15. In Pathupati Subba Reddy (died) by Lrs. Vrs. The Special Deputy Collector (LA), (2024) 4 SCR 241 = 2024 INSC 286, having taken review of relevant earlier decisions, the W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 54 of 78 principles for consideration of condonation of delay have been expounded in the following terms:
"6. The moot question before us is whether in the facts and circumstances of the case, the High Court was justified in refusing to condone the delay in filing the proposed appeal and to dismiss it as barred by limitation.
***
9. Section 3 of the Limitation Act in no uncertain terms lays down that no suit, appeal or application instituted, preferred or made after the period prescribed shall be entertained rather dismissed even though limitation has not been set up as a defence subject to the exceptions contained in Sections 4 to 24 (inclusive) of the Limitation Act.
***
12. In view of the above provision, the appeal which is preferred after the expiry of the limitation is liable to be dismissed. The use of the word „shall‟ in the aforesaid provision connotes that the dismissal is mandatory subject to the exceptions. Section 3 of the Act is peremptory and had to be given effect to even though no objection regarding limitation is taken by the other side or referred to in the pleadings. In other words, it casts an obligation upon the Court to dismiss an appeal which is presented beyond limitation. This is the general law of limitation. The exceptions are carved out under Sections 4 to 24 (inclusive) of the Limitation Act but we are concerned only with the exception contained in Section 5 which W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 55 of 78 empowers the Courts to admit an appeal even if it is preferred after the prescribed period provided the proposed appellant gives 'sufficient cause' for not preferring the appeal within the period prescribed. In other words, the Courts are conferred with discretionary powers to admit an appeal even after the expiry of the prescribed period provided the proposed appellant is able to establish „sufficient cause‟ for not filing it within time. The said power to condone the delay or to admit the appeal preferred after the expiry of time is discretionary in nature and may not be exercised even if sufficient cause is shown based upon host of other factors such as negligence, failure to exercise due diligence etc.
13. It is very elementary and well understood that Courts should not adopt an injustice-oriented approach in dealing with the applications for condonation of the delay in filing appeals and rather follow a pragmatic line to advance substantial justice.
***
17. It must always be borne in mind that while construing 'sufficient cause' in deciding application under Section 5 of the Act, that on the expiry of the period of limitation prescribed for filing an appeal, substantive right in favour of a decree-holder accrues and this right ought not to be lightly disturbed. The decree-holder treats the decree to be binding with the lapse of time and may proceed on such assumption creating new rights.W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 56 of 78
***
26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 57 of 78(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the Court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."
7.16. In a recent case, being Union of India Vrs. Jahangir Byramji Jeejeebhoy (D) through his Lr., (2024) 4 SCR 76 = 2024 INSC 262, certain observations are made which are given as under with respect to a case where there was inordinate delay in filing appeal:
"24. In the aforesaid circumstances, we made it very clear that we are not going to look into the merits of the matter as long as we are not convinced that sufficient cause has been made out for condonation of such a long and inordinate delay.
25. It hardly matters whether a litigant is a private party or a State or Union of India when it comes to condoning the gross delay of more than 12 years. If the litigant chooses to approach the Court long after the lapse of the time prescribed under the relevant provisions W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 58 of 78 of the law, then he cannot turn around and say that no prejudice would be caused to either side by the delay being condoned. ***
26. The length of the delay is a relevant matter which the Court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the appellants, it appears that they want to fix their own period of limitation for instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the Court must not start with the merits of the main matter. The Court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.
27. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. We should not keep the „Sword of Damocles‟ hanging over the head of the respondent for indefinite period of time to be W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 59 of 78 determined at the whims and fancies of the appellants."
7.17. It may be of benefit to have reference to Esha Bhattacharjee Vrs. Managing Committee of Raghunathpur Nafar Academy, (2013) 9 SCR 782, wherein the following principles are culled out:
"15. From the aforesaid authorities the principles that can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice- E 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.
(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.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(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.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 60 of 78
(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.
(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(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.
(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.
(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.
(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 61 of 78 by taking recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts are to be 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.
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
(a) An application for condonation of delay should be drafted with careful concern and not in a half hazard 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.
(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.
(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.W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 62 of 78
(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
7.18. In Amalendu Kumar Bera Vrs. State of West Bengal, (2013) 4 SCC 52 the consideration of "sufficient cause"
qua official business has been perceived in the following manner:
"There is no dispute that the expression "sufficient cause"
should be considered with pragmatism in justice oriented approach rather than the technical detection of "sufficient cause" for explaining every day‟s delay. However, it is equally well settled that the courts albeit liberally considered the prayer for condonation of delay but in some cases the court may refuse to condone the delay inasmuch as the Government is not accepted to keep watch whether the contesting respondent further put the matter in motion. The delay in official business requires its pedantic approach from public justice perspective. In a recent decision in Union of India Vrs. Nripen Sarma, (2013) 4 SCC 57 = AIR 2011 SC 1237 the matter came up against the order passed by the High Court condoning the delay in filing the appeal by the appellant-Union of India. The High Court refused to condone the delay on the ground that the appellant-Union of India took their own sweet time to reach the conclusion whether the judgment should be appealed or not. The High Court also expressed its anguish and distress with the way the State conducts the cases regularly in filing the appeal after the same became operational and barred by limitation."
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 63 of 787.19. Having thus discussed the gamut of "sufficient cause"
vis-à-vis "good cause" with reference to the parameters of consideration of germane grounds for condonation of delay in preferring appeal, this Court feels expedient to observe that in State of M.P. Vrs. Pradeep Kumar, (2000) 7 SCC 372, the Hon‟ble Supreme Court held that if an appeal is time barred, the Court should either return the memorandum of appeal to the appellant to submit it along with an application under Section 5 of the Limitation Act or should provide a chance to file application for condonation of delay. The Court cannot, under such circumstances, dispose of the appeal on merit. In S.V. Matha Prasad Vrs. Lalchand Meghraj, (2007) 14 SCC 722, it has been clearly held that while dealing with an application under Section 5 of the Limitation Act, the Court cannot dispose of an appeal on merit and such a course has been disapproved by the Hon‟ble Supreme Court of India. However, in O.P. Kathpalia Vrs. Lakhmir Singh, AIR 1984 SC 1744, it is held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.
7.20. In State of Himachal Pradesh Vrs. Gorkha Ram, Special Leave Petition (Criminal) Diary No. 27426 of 2020, vide Order dated 23.08.2021, the Hon‟ble Supreme Court made the following observation:
W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 64 of 78"The SLP has been filed with a delay of 636 days. On our query as to what is the reason, learned counsel seeks to contend it is because of COVID. The order was passed on 05.12.2018 and thus, we asked the counsel as to which year was the world affected by Covid 2019 or 2020 to which learned counsel‟s answer initially was 2019, possibly to cover the delay but realizing that it was 2020, he states that the papers were not received by him. To say the least, we are shocked at the conduct of the petitioner-State and the manner of conduct the litigation in such a sensitive matter. There is not even a semblance of explanation for delay. We however, would not like to dismiss the petition on limitation because of the seriousness of the issue involved. But that is no excuse why the State should not be made accountable of such inordinate delay and the persons responsible for the same. We thus, condone the delay but subject to imposition of costs of Rs.25,000/- to be deposited with the Supreme Court Group „C‟ (Non- Clerical) Employees Welfare Association within four weeks with a direction to hold the enquiry, fix responsibility and recover the amount from the officers concerned. The certificate of recovery should be filed before this Court within the same period of time. The application for condonation of delay is allowed in the aforesaid terms."
7.21. The Supreme Court of India in State of Madhya Pradesh Vrs. Bherulal, (2020) 10 SCC 654, made it clear that, "5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 65 of 78 can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.
6. We are also of the view that the aforesaid approach is being adopted in what we have categorised earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the officer concerned responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straightaway the counsel appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.
7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 66 of 78 of judicial time which has its own value. Such costs can be recovered from the officers responsible."
7.22. Taking note of State of Madhya Pradesh Vrs. Bherulal, (2020) 10 SCC 654, in the cases of State of Odisha Vrs. Sunanda Mahakuda, (2021) 11 SCC 560; State of Gujarat Vrs. Tushar Jagdish Chandra Vyas, 2021 SCC OnLine SC 3517; State of U.P. Vrs. Sabha Narain, (2022) 9 SCC 266; Union of India Vrs. Central Tibetan Schools Admin, 2021 SCC OnLine SC 119; Union of India Vrs. Vishnu Aroma Pouching Pvt. Ltd., (2022) 9 SCC 263; Commissioner of Public Instruction Vrs. Shamshuddin, 2021 SCC OnLine SC 3518 identical view has been expressed by the Supreme Court of India.
CONCLUSION & DECISION:
8. The theme and substance of argument of the learned Advocate General seems to be that when the point at issue involved in the main case has been considered in the case of Joseph Barik (supra) by a Division Bench of this Court, the decision of the learned Single Judge cannot withstand judicial scrutiny, which would necessitate this Court to consider condonation of delay for adjudication of the instant case on merit.
8.1. Apparently, the decision of this Court in State of Odisha Vrs. Chakradhar Prasad Gantayat, W.A. No.321 of 2022, vide Order dated 20.03.2024, may have relevance to W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 67 of 78 appreciate the nature of question of law raised in the present case. Paragraph 4 of said decision reads thus:
"4. In case of Joseph Barik (supra), a co-ordinate Bench of this Court has in no uncertain terms held that a government servant does not have a right to be considered for promotion during the pendency of either departmental proceeding or criminal proceeding. The said decision has been followed in a recent decision dated 06.03.2024 rendered in the case of The Principal Secretary, Panchayat Raj Department, Government of Odisha and others, in W.A. No.16 of 2024. The aforesaid Office Page 4 of 6 Memorandum dated 04.07.1995, reliance on which has been placed by the learned counsel for the respondent has been taken note of by this Court in the case of Joseph Barik (supra). It has been pointed out by the learned Additional Government Advocate appearing for the appellant-State that the said office Memorandum dated 04.07.1995 has subsequently been withdrawn vide Notification dated 29.04.2017 (Annexure-6 to the writ appeal)."
8.2. Glance at the Order dated 20.01.2022 of the learned Single Judge manifests that at the time of disposal of case of the present respondent, the writ appeals preferred by the State of Odisha raising the question "whether during the pendency of a criminal case against the Government servant in the Court of the Special Judge (Vigilance), and notwithstanding exoneration of the said employee in the departmental proceedings, could the learned Single Judge have ordered grant of W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 68 of 78 either ad hoc or regular promotion to the Government servant subject to the outcome of the criminal proceedings?" in a batch of matters being Joseph Barik and Others (supra), W.A. No.805 of 2021 and batch of writ appeals were pending adjudication. The Judgment of this Court [Division Bench] was rendered on 11.05.2023 in the case of Joseph Barik and batch (supra). Therefore, it does arise in the present case whether the learned Single Judge without waiting for adjudication of question of law by the Division Bench could direct for promotion of the respondent to the rank of Forest Ranger from 23.12.2016, i.e., from the date of his juniors and batchmates got such promotions.
8.3. As submitted by learned Advocate General that considerable length of time elapsed due to consultation with the Law Department and there was no lack of bona fide. Circumstances prevailing at that relevant period led dilemma in approaching this Court in writ appeal against the order of the learned Single Judge when the identical question of law involved in the present matter was pending adjudication. Such circumstances being beyond the control of the appellants, this writ appeal deserves to be considered by appreciating sufficiency in cause in approaching this Court with a delay.
9. From the above discussions it is immutable that unless "sufficient cause"/"good cause" is shown, there is little W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 69 of 78 scope for the Court to exercise the discretion in condoning the inordinate delay in filing writ appeal by the Government. In other words, it may be stated that though pragmatic approach has to be adopted, any plea without any plausible or acceptable ground would not possibly lead to apply discretion in favour of condoning the inordinate delay.
9.1. In Vedabai @ Vaijayanatabai Baburao Patil Vrs.
Shantaram Baburao Patil, AIR 2001 SC 2582, the Hon‟ble Court observed that, "A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression 'sufficient cause' the principle of advancing substantial justice is of prime importance."
9.2. With the aforesaid perspective, this Court would scrutinize the explanation proffered by the State of Odisha in its petition, being I.A. No.2585 of 2023, praying therein for condonation of delay in filing writ appeal. For appreciation of explanation contained in the W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 70 of 78 petition, it is beneficial to reproduce relevant portions of the petition:
"4. That it is humbly submitted that after receipt of the copy of the impugned order dated 20.01.2022, the file was processed for filing of writ appeal.
5. That, the petitioners had to obtain opinion and approval from several quarters before filing of the present writ appeal in accordance with the Government of Odisha Rules of Business and due to such administrative exigencies, the present writ appeal is being filed today.
6. That, the process of consultation, arrangement, and preparation of the Writ Appeal took some time and led to this inadvertent delay in the filing of the present petition. That the delay so caused is neither deliberate nor intentional and as such may kindly be condoned in the interest of justice.
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8. That the Government in Law Department accorded sanction vide Letter dated 16.12.2022 to file writ appeal challenging the order impugned.
9. That, the Petitioner No. 1 submitted all the records to the Office of the Advocate General for filing of Writ Appeal vide Letter No.1821/FE&CC dated 31.1.2023 and thereafter, the file was entrusted to the Law Officer on 23.02.2023 and the matter was briefed to him by the departmental authority in the last week after which, the writ appeal was made ready and has been filed today *** W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 71 of 78
10. That, the delay caused in filing the writ appeal was neither intentional nor deliberate but due to unavoidable circumstances beyond the reasonable control of the petitioners.
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9.3. Glance at the petition revealed that steps were being taken by the Department concerned for obtaining opinion of Law Department. Further fact which is apparent from the record is that the issue involved in the instant case was subject matter in a bunch of cases pending adjudication before the Division Bench of this Court. Such being the circumstance, it cannot be held that there was deliberate laches on the part of the petitioners to file writ appeal.
9.4. In the case of Maniben Devraj Shah Vrs. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157, the observation of the Supreme Court of India may deserve to be quoted:
"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 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."W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 72 of 78
9.5. Accepting the Order dated 20.01.2022 of the learned Single Judge would be to land up in conflicting decision on the identical question of law. As conceded by counsel for the petitioner that question of law raised in the present matter has similitude with that of ratio laid down in Joseph Barik (supra), but contended that on facts both the matters are dissimilar. Be that as it may, since question of law raised in the present case by the appellants is required to be addressed to on merit of the present matter, the delay in filing writ appeal deserves to be condoned.
9.6. Prima facie, the case of the appellants is stated to be supported by the decision of this Court rendered in the case of State of Odisha Vrs. Chakradhar Prasad Gantayat, W.A No.321 of 2022, vide Judgment dated 20.03.2024, referring to the decisions in Joseph Barik (supra) and The Principal Secretary, and Panchayatraj Department, Government of Odisha (supra). As the explanation of the appellants in the petition does not smack of mala fides and this Court perceives no dilatory strategy, this Court is of the considered view that the refusal to condone the delay would result in grave miscarriage of justice.
9.7. Since there is reasonable ground to think that the delay was occasioned by the appellants without any deliberate attempt to gain time. Therefore, this Court tilts in favour W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 73 of 78 of acceptance of the explanation exercising discretionary power. As the respondent is stated to have been retired on 28.02.2022, and the consideration of the petitioner for promotion, being not a matter of right, no prejudice would be caused if such consideration is made after culmination of the criminal proceeding as also the Disciplinary Proceeding. The appellants have sought for indulgence of this Court by way of a petition for condonation of inordinate delay of 450 days.
9.8. Unless there is want of bona fide of such inaction or negligence as would deprive a party of the protection within ken of the connotation of the term "sufficient cause"/"good cause", the petition must not be thrown out or any delay cannot be refused to be condoned.
"Sufficient cause"/"good cause" depends on facts and circumstances of each case; no straitjacket formula can be adopted to find out what constitutes "sufficient cause"/"good cause". The parameters adopting which the Court would consider "sufficient cause"/"good cause", preventing the appellants in filing writ appeal within time stipulated, should be pragmatic and not pedantic or dogmatic, depends upon facts and circumstances of each case. As sufficient cause or good cause-- which is a question of fact-- is manifest, it is the duty of the Court to make enquiry whether delay can be condoned in exercise of discretion, being undefined. In W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 74 of 78 the factual matrix and the circumstances discussed above, it is, therefore, apt to liberally construe "good cause" as the appellants does not appear to be negligent.
9.9. At this juncture the decision of the Hon‟ble Supreme Court of India rendered in the case of Bhubaneswar Development Authority Vrs. Madhumita Das, 2023 SCC OnLine SC 977, as relied on by Sri Ashok Kumar Parija, learned Advocate General, may be referred to. To buttress his contention that merit of the matter can be looked into at the time of condoning the delay in filing writ appeal, he submitted that the Hon‟ble Supreme Court of India in the said reported case had interfered with the refusal of a Division Bench of this Court to entertain writ appeal by declining to condone the delay of 564 days in filing writ appeal. The Hon‟ble Supreme Court considered the reasons ascribed for condonation of delay as plausible and at paragraphs 14 and 44 (SCC OnLine SC) it has been observed as follows:
"14. We have perused the reasons which were placed on the record of the Division Bench for condoning the delay. The State had explained in detail the steps which were taken to take necessary approvals for the purpose of processing the writ appeal. Besides declining to condone the delay in this case would have serious consequences of allowing an imposter to continue having the benefit of a reserved seat. This W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 75 of 78 is not just a matter of detriment to the State but to genuine aspirants to the reserved seat who would be ousted. We are of the considered view that the Division Bench ought to have condoned the delay in the facts of this case.
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44. We have perused the reasons which were placed on the record of the Division Bench for condoning the delay. The State had explained in detail the steps which were taken to take necessary approvals for the purpose of processing the writ appeal. We are of the considered view that the Division Bench ought to have condoned the delay in the facts of this case."
9.10. It may be pointed out that compliance of direction contained in the impugned Order dated 20.01.2022 would have serious impact on the State Government and/or larger effect in general.
10. Vide Judgment dated 20.03.2024 in State of Odisha Vrs.
Chakradhar Prasad Gantayat, W.A No.321 of 2022, the Division Bench following the Judgment in Joseph Barik (supra) held as follows:
"5. Be that as it may, in view of the law laid down by the Division Bench of this Court in the case of Joseph Barik (supra), in our opinion, the impugned decision rendered by the learned Single Judge cannot be upheld which requires interference.W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 76 of 78
6. Accordingly, the impugned judgment dated 02.12.2021 passed by the learned Single Judge in W.P.(C) No.10919 of 2021 is set aside. This writ appeal is allowed. W.P.(C) No.10919 of 2021 is dismissed."
10.1. In order to maintain parity and consistency in approach, this Court now deems it fit case where the delay in filing the writ appeal is required to be condoned for adjudication of the matter on merits by examining whether the ratio laid down in Joseph Barik (supra) is applicable in the present fact-situation.
11. In the wake of aforesaid discussions and reasons ascribed, this Court comes to the conclusion that there was bona fide reason for the delay in preferring writ appeal by the appellants. The explanation proffered by the appellants in the petition for condonation of delay in the opinion of this Court being good cause and the appellants could demonstrate prima facie merit of the main matter supported by a Division Bench decision of this Court in a bunch of cases, which came to finalized after the impugned Order was passed. These would lead to hold that the cause shown by the appellants is reasonable one. It is only after disposal of batch of cases, being Joseph Barik (supra), the intra-Court appeal has been preferred by the appellants. This Court cannot also ignore such fact. The appellants have diligently W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 77 of 78 prosecuting cases, which is one of the reasons for the delay.
12. In consequence of aforesaid observations, discussions made and reasons assigned, having found "good cause"
shown by the appellants so as to be persuaded to condone the delay in filing writ appeal, the interlocutory application, being I.A. No.2585 of 2023, is allowed, subject to cost of Rs.25,000/- to be deposited with the High Court Bar Association Advocates‟ Welfare Fund, Cuttack within four weeks hence.
13. As Sri Swapnil Roy appeared for the opposite party, notice need not be issued. The counsel for the Appellants is requested to serve copy of the writ appeal on him.
14. List the writ appeal before the appropriate Bench for consideration on merit of the matter.
(MURAHARI SRI RAMAN) JUDGE CHAKRADHARI SHARAN SINGH, CJ.-- I agree.
(CHAKRADHARI SHARAN SINGH) Signature Not Verified CHIEF JUSTICE Digitally Signed Signed by: SUCHITRA BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Dec-2024 11:36:10 High Court of Orissa, Cuttack The 11th December, 2024//MRS/Laxmikant W.A. No.1003 of 2023 & I.A. No.2585 of 2023 Page 78 of 78