Calcutta High Court
State Of West Bengal, Represented By The ... vs West Bengal Judicial Service ... on 23 April, 1990
Equivalent citations: (1990)1CALLT419(HC)
JUDGMENT Anandamoy Bhattacharjee, J.
1. The appeal, in respect of which the present application for extension of time and condonation of delay has been filed under Section 55 of the Limitation Act, 1963, has been preferred by the Appellant State and seek to assail the judgment of a learned single Judge on a petition under Article 226 presented by the Respondents No. 1 to No. 6 against the appellant State, as the Respondent No. 1, then being represented by the Secretary, Judicial Department (who is now Respondent No. 7 before us) and also the Secretary, Department of Finance as the Respondent No. 2, who in this appeal is representing the appellant State now before us. The writ petitioner No. 1 in the Court below, now Respondent No. 1 before us, is the West Bengal Judicial Service Association, an Association of the Judicial Officers in this State and the other co-petitioners, now Respondents No. 2 to No. 6, are officers of the State Higher Judicial Service and members of the above-named Association while, as already noted, the Secretary, Judicial Department, who represented the State in the Court below, has now been arranged as Respondent No. 7. The fact that the appellant State, who as the Respondent No. 1 in the Court below was represented by the Secretary, Judicial Department, has bad now to decide to prefer this appeal before us through the Secretary, Finance Department, relegating its earlier representative, the Secretary of its Judicial Department, to the position of a co-respondent, should go a long way to demonstrate that these two Departments are very much at cross-purposes. In fact, as would appear hereafter, even if these two Departments are not branded to be at logger-heads and to have adopted a somewhat bellicose attitude of zealous (if not jealous) combatants, it is manifest from the records that they are holding diametrically opposite views giving rise to unfortunate departmental in-fighting, which, to say the least, cannot but be detrimental to the smooth, healthy and orderly running of the Government.
2. The dispute, shorn of details not necessary for our present purpose, is whether "several financial benefits as has been allowed to the members of the Indian Administrative Service" ought to have been allowed to the members of the West Bengal Higher Judicial Services also with effect from the same date on and from which those have been allowed to the former. The State Government decided to grant the benefits to the former from an earlier date, but to the latter from a later date. The West Bengal Judicial Service Association and its members, the respondents here, challenged such fixation of a later date in the writ proceeding and the challenge having succeeded in the Court below, the State has come up in appeal ; but the same having been preferred after the expiry of the period of limitation prescribed therefor, the present application has been filed for extention of time and condonation of delay.
3. It has not been, as it obviously cannot be, disputed that the success of the Writ Petition was to go, and has accordingly gone, to the benefit of all the officers of the Higher Judicial Service including the Judicial Secretary and other high-ranking officers of the Judicial Department of the State, who took upon themselves the charge of conducting and contesting the Writ Petition on behalf of the State. As would appear from paragraph 1 of this application, the Judicial Secretary sent the relevant file to the Legal Remembrancer, another high-ranking Judicial Officer, "for engaging an Advocate to represent this Department'. It would further appear that the Judicial Secretary appears to have regretted that though "almost all the prayers in the Writ Petition were recommended by this Department, yet "either for the refusal or delay in taking decision on the part of the Finance Department, the benefit could not be extended to the WBHJS fully at per with the IAS". The final fiat of the Judicial Secretary was that "we may swear an affidavit to the effect that we do not see any grounds or reasons to oppose the prayer".
4. I have given the matter my most anxious thought, but I have, and this I say with all respect, failed to appreciate the manner in which the officers of the Judicial Department purported and professed to conduct the Writ Petition on behalf of the State. The Judicial Department appears to have already recommended the claims made in the petition on behalf of the Association of which the high officers of that Department are members. They are obviously personally and also financially interested in the success of such claim. The Judicial Secretary has made it clear in his note that "we may swear an affidavit to the effect that we do not see any ground or reason to oppose" the Writ Petition. When the Judicial Officers through their Association filed the Writ Petition, it was not proper for some of those Judicial Officers running the Judicial Department to take the responsibility to contest the petition on behalf of the respondent-State and then not to contest the same in effect. The Judicial Department, as would appear from the note of the Judicial Secretary, knew it well that the Finance Department, which is primarily entrusted to look after the financial interest of the State, was against these claims and refused to entertain the same. Whether the stand of the Finance Department was justified or not was a different matter and may not, as held by the trial Judge, be justified. But once the Judicial Department held that the claims were justified and those claims were to confer considerable financial benefits to the officers of that Department also, but that the Finance Department was opposed to the claims, it ought not to have, as a matter of propriety, decency and fair-play, taken upon itself the charge of contesting the case. After the impugned order was passed by the trial Court in favour of the Judicial Officers, the Special Secretary of the Judicial Department, as would appear from paragraph 8 of the application, has realised that "the matter involves two Departments, viz. the Judicial Department and the Finance Department and has assumed much importance" and that in view of the stand of the Finance Department, the matter was to be placed before the Chief Secretary for his views. How I wish that the Judicial Department realised the propriety of such a course at an earlier stage also, before the Department decided to conduct the case on its own. The principle, though sometimes overstated, is nevertheless well-settled that justice must not only be done, but must also manifestly appear to have been done and that is a principle to be followed not only by judicial, but also by all decision-making bodies. I am afraid that when the State was, whether at the instance of the Finance Department or otherwise, denying the petitioners the reliefs claimed, it was neither proper nor fair for the Judicial Department, which has already sided with the petitioners and whose top officers were also to be financially benefited by the success of the petition, to take charge of the case on behalf of the State under the garb of a contestant only to put forward a confession. There cannot be any invariable or inviolable rule that the State litigations are to be conducted by the Judicial Department alone and I am afraid that the Judicial Department and its officers cannot be said to have maintained the principle of Judicial rectitude in representing the State in this case.
5. After the order impugned in this appeal was passed by the trial Judge on 10.3.89, it appears that the officers of the Judicial Department were more interested to work out the financial implications than to apprise the Department of Finance, which was opposed to the claims of the petitioners, about the order. As would appear from the note of the Special Secretary of the Judicial Department referred to in paragraph 8 of the application, the said officer could find no time to send the file to the Finance Department before the expiry of the period prescribed for appeal and even on 21.6.89, when according to the said officer "both periods of appeal and revision/review have already expired", he could still think of placing the file before the Chief Secretary "before sending the file to the Finance Department". In this backdrop, we would have to consider the assertions made by the appellant State, now represented by the Finance Department, in paragraph 18 of the application, to the effect that "the delay is due to the fact that the appellant/petitioner was kept in the dark of the aforesaid order by the writ-petitioner/respondents as well as the Judicial Department and L.R's office till 22.6.89".
6. Even though we go on chanting almost with devotional fervour the doctrine of Equality before Law and proclaim our rigid adherence thereto, our Legislature has never hesitated to treat the Government differently and our Courts have also upheld such differential treatment on the ground that the Government can be reasonably classified to form a distinct and separate group to warrant such treatment. The much longer periods prescribed by our Law of Limitation for Governmental actions clearly demonstrate the anxiety of our Legislature to treat the Government differently from the ordinary private litigants. We are equally vocal in proclaiming that Government is not, and cannot be, a favoured litigant in a Court of Law. But notwithstanding such assertions, our apex Court has conceded the necessity of a somewhat different approach while considering the question as to whether the Government has been able to make out a "sufficient cause" for extention of time and condonation of delay in its favour. Reference may be made to, among others, two rather recent decisions of the Supreme Court in G. Ramegowda v. Special Land Acquisition Officer and in Collector, Land Acquisition v. Katiji , and the reasons which have weighed with our apex Court in approving a somewhat more liberal and favourable approach towards the Government appear to be as hereunder:-
(1) If appeals or other proceedings initiated by the Government are lost, no person is individually affected ; but what in the ultimate analysis suffers is public interest.
(2) The decisions of the Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.
(3) Government decisions are proverbially slow, encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. On account of 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 note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand, though more difficult to approve.
(4) Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision-making process. It might therefore be somewhat unrealistic to exclude these factors which are peculiar to and characteristic of the functioning of the Government.
(5) While a private person can take instant decision, a "bureaucratic organ hesitates and debates, consults and considers, speaks through paper, moves horizontally and vertically till at least it gravitates towards a conclusion-unmindful of time and personality."
(6) A certain amount of latitude is, therefore, not impermissible and it is rightly said that those who bear the responsibility of the Government must have "little play at the joints". It would perhaps be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. It may be noted that in G. Ramegowda (supra, at 148), the factor of the officers of the Government being "clearly at cross-purposes" was also adverted to by the Supreme Court as something to be taken into account while determining as to whether "sufficient cause" has been made out by the Government for the condonation of delay and, as already noted, in the case at hand, the records unmistakably show that the Judicial Department and the Finance Department were in fact at cross-purposes in respect of the subject of dispute. And what must be noted further is that even though the Supreme Court in that case was inclined to hold (at 149) that the "Government could and ought to have moved with greater diligence and despatch consistent with the urgency of the situation" and that "the conduct of the Government was perilously close to such inaction as might, perhaps, have justified rejection of its prayer for condonation", yet the Supreme Court declined to interfere with the decision of the High Court condoning the delay made by the Government as the Supreme Court approved the view of the High Court, though somewhat inarticulated, that "in the interest of keeping the stream of justice pure and clear", the impugned awards ought not to have been "permitted to assume finality without an examination of their merits" and that "the State should not be penalised for the lapse of some of its officers".
7. The officers of the Judicial Department being vitally interested in the success of the Writ Petition, which was virtually filed by their own Association and their colleagues, the Department having all along demonstrated their unequivocal support in respect of the claims and having decided to file affidavit conceding these claims, I have my doubts whether the State Government, which was so long denying these claims to the petitioners (whether at the instance of Finance Department or otherwise), could be effectively represented by the Judicial Department. At any rate, the fact that after the impugned judgment was passed on 10.3.90, the Judicial Department did not send the relevant file to the Finance Department, which was all along opposing the claim in the Government and was also the most important Department to be concerned in the matter, and could decide to send the file to the Chief Secretary only on 21.6.89 apprehending opposition from the Finance Department, would leave no room for doubt that there was no effective intimation to the State Government till that date about the impugned order passed against it. The entire record including a plain copy of the Order, was held back in the Judicial Department, which, as already noted, being manned by officers belonging to the petitioner Association, was interested in the order against the State becoming final and operative. In a case like this, I would also like to think that, to borrow from Land Acquisition Officer v. B. M. Krishna Murthy (1985-1 Supreme Court Cases 469), followed in G. Ramegowda (supra, at 149), "the State should not be penalised for the lapse of its officers". And again to borrow from G. Ramegowda (supra), "in the interest of keeping the stream of justice pure and clean" and to see that our Judicial Officers cannot be blamed for having improperly procured an order in their favour and against the State, the impugned order "should not be permitted to assume finality without an examination of its merits". If one wing of the State is at cross-purposes with the another wing and their in-fighting or mutual antipathy disables the State from knowing, or effectively knowing, about the impugned order saddling the State with considerable financial liability, then for the reasons and under the facts and circumstances as stated hereinabove, the State should be held to have made out a case for extention of time and condonation of delay, particularly when it is borne in mind that any financial onslaught on the State exchequer virtually affects the people at large, while any financial loss to an individual is his loss alone. It is not disputed that if it is held that State could effectively come to know about the impugned order only on 21.6.89, there is sufficient cause for its not being able to prefer this appeal before 29.6.89 when the same has actually been filed.
8. In Collector, Land Acquisition v. Katiji (supra, ), already referred to, a two-Judge Bench of the Supreme Court appears to have regretted that its "message" of "liberal approach in matters" of extention of time "does not appear to have percolated down to all the other Courts in the hierarchy" and that a "Justice-oriented" "liberal approach is adopted on principle as it is realised 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 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".
9. A very liberalised approach indeed. As I had occasion to observe in a recent Division Bench decision of this Court in Somenath v. Vivek (92 Calcutta Weekly Notes 558 at 562), the message appears to be that since an appellant does not stand to gain, but runs a serious risk by lodging an appeal late, and since the refusal to condone delay might result in a meritorious appeal being shut out at the threshhold, while condonation would at its highest result in a hearing of the appeal on merits with due notice to the parties, and since substantial justice after hearing on merits should, wherever possible, be preferred to technical consideration scuttling such hearing, non-deliberate delay, particularly in the absence of culpable negligence or mala fides, would deserve a liberal approach. While one would have thought that in considering the question as to whether time is to be extended and delay condoned, the relevant question is "whether there is 'sufficient cause' to extend or condone", as a result of this message one would have to recast the question as "whether there is 'sufficient cause' not to extend or condone". To put it differently, the question may not be "why to condone", but may be "why not to condone".
10. We must not read this message, and for the matter of that, no decision even of superior Court, as if they are legislation. A blind and uncritical adherence to and acceptance of this message might amount to a virtual repealment of the Law of limitation in respect of appeals and applications to which Section 5 of the Limitation Act would apply. That is also what has been pointed out by my Lord Mookerjee, J. in Beharilal Shaw v. Surendra Singh (92 Calcutta Weekly Notes 595 at 598). There, after referring to the catena of decisions of the Supreme Court to the effect that a lawyer's mistake may be treated as sufficient cause for condonation of delay, Mookerjee, J. has emphatically asserted that the principle can not be. allowed to be accepted as a blanket formula and thus extended almost to a breaking point and that "a line is needed to be drawn" "if discretion under Section 5 of the Limitation Act is not intended to be illusory or merely academic".
11. A much earlier two-Judge Bench decision of the Supreme Court, rendered in 1961, in Ramlal v. Rewa Coalfields has so long, been taken to have enunciated the law on the point and some observations made therein may be construed to have ruled a somewhat different approach. The observations, (supra, at 363-364) to the effect that the "first consideration is that the expiration of the period of limitation, prescribed for making an appeal gives rise to a right in favour of the decreeholder to treat the decree as binding between the parties .............., to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed", and that "even after sufficient cause has been shown, a party is not entitled to the condonation of delay in question as a matter of right", but "discretion is given to the Court to condone the delay" and "the Court has to enquire whether in its discretion it should condone the delay", may not apparently appear to be easily reconcilable with the "liberalised approach" advocated in Katiji (supra). If two Benches of the Supreme Court of co-equal strength enunciate apparently different principles, our first endeavour must be to reconcile, wherever possible, the apparent conflict by a reasonable and meaningful reading. And if so read, I do not think that Ramlal (supra) and Katiji (supra) would appear to be that inconsistent to defy or deny a reasonable reconciliation. While both Ramlal and Katiji have approved liberal construction and liberal approach, Katiji has also spelt out the reasons justifying such liberal approach. But while Ramlal has also adverted to the aspect that the right accruing to a successful party to treat the decision as final on the expiry of the period of limitation prescribed should not be light-heartedly disturbed, Katiji has not made any specific reference to that aspect. But there is nothing in Katiji, as there can be in no judicial authority, any indication that the right of any party to any proceeding can be dealt with light-heartedly. Neither Ramlal should be applied too strictly to scuttle a decision on merits, nor Katiji should be applied too liberally to make, as observed by my learned brother Mookerjee, J. in Beharilal Shaw (supra), the 'discretion' vested in Courts to condone or not to condone almost "illusory" or "merely academic". The upshot of Ramlal read with Katiji and Ramegowda (supra) appears to me to be that since hearing on merits is to be preferred, wherever reasonably possible, to denial of such hearing on technical consideration, if two views are possible, one in favour and the other against condonation, the former should be adopted.
12. As I have indicated hereinbefore, two factors have mainly weighed with me in deciding to allow the application for condonation filed by the State. Firstly, as a result of antipathy and in-fighting between two Departments of the Government, the interest of the State, in which the people at large are vitally interested, should not be allowed to suffer. And secondly, the officers of the Judicial Department being vitally interested in the success of the Writ Petition, filed by their own Association, did not act judiciously in taking official charge of contesting did not act judiciously in taking official charge of contestng the case on behalf of the Respondent State and then not be contest the case in fact by conceding the claims. The petitioners are all Judges belonging to the Higher Judicial Service of this State ; the officers who professed to contest the petition on behalf of the State Respondent, but really confessed the claims, are also such Judges and would reap the benefit of the impugned judgment. Let them have it if they are legally entitled thereto. But let no suspicion lurk anywhere that our Judges, purporting to contest the claim of the petitioners on behalf of the State Respondent, deliberately or otherwise provided for some sort of walk-over to the petitioners. Judges must be Caeser's wife and, to use the words of the Supreme Court in G. Ramegowda (supra), "in the interest of keeping the stream of justice pure and clean", the impugned order in their favour should not be permitted to assume finality without an examination of its merits.
13. I would accordingly allow the application filed by the State under Section 5 of the Limitation Act for extention of time and condone the delay in filing the appeal. Let the appeal be admitted and registered accordingly. The Registry is directed to list the appeal for hearing two weeks hence and the Applicant to take all the necessary steps in the meantime without fail. No costs.
S.K. Mookerjee, J.
14. I had the advantage of reading the judgment of my learned brother A.M. Bhattacharjee, J. and I respectfully agree with his final conclusion, but I would like to indicate briefly by own reasons.
15. In the instant case, the delay is of 49 days in preferring the appeal in question. It is well-settled that the duty of the appellant in case of a timebarred appeal to explain the delay sufficiently does not relate to the period prior to the date of limitation. In the instant case, the statutory period of limitation expired on 9th of May, 1989. The appellant, therefore, is required to explain the delay for the period from 10th of May, 1989 upto the date of filing of the appeal, that is, 27th June, 1989. From the list of dates supplied, it appears that the plain copy of the order was forwarded to the Judicial Department by the learned Advocate of the appellant on 7th of June, 1989. My learned brother has already discussed in details the legal principles governing the considerations of the question of condonation and I fully agree with the analysis he has made of the different decisions of the Supreme Court. In the present case, admittedly, the Judicial Department having recommended the grant of reliefs as were prayed for in the writ application, could not be expected to effectively contest the writ application by taking a contrary stand, but the Finance Department, which was the real contesting party, did not have, in spite of being impleaded as a respondent in the writ proceeding, adequate opportunity to ventilate its stand before the learned trial Judge. The Affidavit-in-Opposition filed by respondent No. 1 in effect supported the case of the petitioners. The coptrary viewpoint, therefore, on the basis of which the present appellant (Secretary, Department of Finance, Government of West Bengal representing the State of West Bengal) is now seeking to resist the enforcement of the decision of the learned trial Judge had never been placed before the Court. The Financial liability involved is also considerable as we have been told that it would be approximately to the tune of about Rs. 25,00,000/- plus annual recurring liability of Rs. 6,84,000/. The officers belonging to West Bengal Higher Judicial Service, who would be receipients of the disputed benefits included those who were in control of the Judicial Department of the State Government, which, actually was entrusted with the responsibility of ventilating the viewpoints of the respondents before the learned trial Judge. In the context of the aforesaid facts, particularly the admitted recommendation to the State Government by the Judicial Department for grant of such benefits to the writ petitioners, it would have looked fairer if the Judicial Department had made way for the Finance Department, which is pressing the opposite point of view, to represent the State before the trial Judge. The principles laid down by the Supreme Court in different decisions have already been very aptly analysed by my learned brother. I would only like to draw particular attention to the following observation of the Supreme Court :
"Refusing to condone delay can result in a meritorious matter being thrown out at the very threshhold and cause of justice being defeated. As against this when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties". (Vide supra).
The special factual features of the present cases considered in the light of the above legal principles, amply justify the conclusions, which we have reached, namely, that the application under Section 5 of the limitation Act should be allowed as the sequence of events, appearing from the materials before us, sufficiently explains the delay in filing the appeal.