Allahabad High Court
Mata Pher Mishra vs State Of U.P. And 2 Others on 9 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 1328
Bench: Sanjay Yadav, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 9 Case :- SPECIAL APPEAL DEFECTIVE No. - 242 of 2021 Appellant :- Mata Pher Mishra Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Dr. Rajesh Kumar Srivastav Counsel for Respondent :- C.S.C.,Sunil Kumar Misra Hon'ble Sanjay Yadav, Acting Chief Justice Hon'ble Prakash Padia,J.
Per Hon'ble Prakash Padia, J.
Order on Delay Condonation Application No. 2 of 2021
1. Matter is taken up through video conferencing.
2. Heard Sri Rajesh Kumar Srivastav, learned counsel for the appellant, learned Standing Counsel for the respondent no.1 and Sri Sunil Kumar Mishra, learned counsel for the respondents no.2 and 3.
3. The appeal is reported to be beyond time by 537 days.
4. Learned counsel for the respondents have no objection in condoning the delay.
5. The grounds taken for condonation of delay are good and sufficient.
6. Delay condoned.
7. Application is allowed.
Order on Appeal
1. The writ petitioner-appellant was working on the post of Driver in Civil Lines Bus Depot, District Allahabad. He was placed under suspension by the Assistant Regional Manager, Civil Lines, Bus Depot, Allahabad vide order dated 10.10.2012, thereafter, matter was inquired by an Enquiry Officer duly appointed by the department. It was found by the Enquiry Officer that the charges levelled against the petitioner-appellant are correct and as such a show cause notice was issued to him on 24.4.2013. Reply to the aforesaid notice was submitted by him on 13.5.2013. Taking into consideration the aforesaid an order dated 22.5.2013 was passed by the respondent no.3/Regional Manager, U.P. State Road Transport Corporation, Allahabad by which balance salary of the suspension period and two increments were with-held effective from future. Apart from the same directions were given to recover the amount of 28 litre diesel from the salary of the petitioner-appellant.
2. Aggrieved against the aforesaid a statutory appeal was preferred by the writ petitioner-appellant as provided under Section 69 of the U.P State Road Transport Corporation Employees (Other than Officers) Service Regulation, 1981 before the respondent no.2 namely Chief Manager (Sa), U.P.S.R.T.C, Head Office, Lucknow. It is provided under Section 69 of the Regulations of 1981 that the appeal could be preferred within a period of three months but since appeal was preferred after the expiry of three months the same was rejected by the appellate authority on the ground that the appeal submitted by the petitioner appellant was time barred. The aforesaid order was passed by the appellate authority on 03.10.2016 rejecting the appeal filed by the petitioner-appellant being barred by time.
3. Aggrieved against the aforesaid order the petitioner-appellant preferred a writ petition before this Court being Writ A No.12268 of 2019. The aforesaid writ petition was dismissed by the learned Single Judge vide judgement and order dated 06.08.2019 solely on the ground of unexplained laches on the part of the petitioner-appellant. Aggrieved against the aforesaid petitioner-appellant has preferred the present special appeal.
4. It is argued by learned counsel for the appellant that reasons for delay in filing the writ petition as well as in filing appeal before the appellate authority was satisfactorily explained by him in the writ petition but without considering the same the writ petition filed by him was rejected by the learned Single Judge. It is further argued that due to mental and physical harassment he was not able to approach this Court within time.
5. In view of the same, it is argued that delay in filing the appeal before the appellant authority as well as in the writ petition be condoned and the appellate authority be directed to decide the appeal filed by the petitioner-appellant on merits.
6. 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.
7. 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.
8. The Apex Court in the case of N. Balakrishnan vs. M. Krishnamurthy reported in JT 1998 (6) SC 242 has laid down that :-
"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. In the judgement, it has been held that 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. Ultimately, in para 14, it has been stated that 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. It has been laid down that in such matters, approach of the court should be justice oriented. The paragraph 14 of the aforesaid judgement is reproduced hereinbelow :-
14. 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 Could 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."
9. The words "sufficient cause" should receive a liberal construction so as to advance substantial justice. The Supreme Court in the case of Shakuntala Devi vs. Kuntal Kumari reported in AIR 1969 SC 575 held that the word "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay in filing an appeal. The relevant paragraph 7 in this regard is reproduced hereinbelow :-
"7. The next question is whether the delay in filing the certified copy or, to put it differently, the delay in re-filing the appeal with the certified copy should be condoned under Section 5 of the Limitation Act, If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay. As laid down in Krishna v. Chathappan (4) "Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is importable to the appellant."
10. Similar view was again taken by the Supreme Court in the case of State of West Bengal vs. The Administrator, Howrah Municipality reported in AIR 1972 SC 749. It was held in the aforesaid case by the Supreme Court that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. The relevant paragraph 30 is reproduced hereinbelow :-
"From the above observations it is clear that the words "sufficient cause" should receive a liberal construction so, as to advance substantial justice when no negligence nor inaction nor is, imputable to a party."
11. In the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others reported in AIR 1987, S.C. 1353, it was held by the Supreme Court that the Court should adopt liberal approach for condonation of delay. Certain observations were made by the Sureme Court in paragraph 3 of the aforesaid judgement, which is reproduced hereinbelow :-
"The legislature has conferred the power to condone delay by enacting Section 51 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:-
"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
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 con- doned 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."
12. In our considered opinion the order passed by the appellate authority dated 03.10.2016 rejecting the appeal filed by the petitioner-appellant as well as the order dated 06.08.2019 passed by the learned Single Judge dismissing the writ petition filed by the petitioner-appellant are liable to be set aside and they are hereby set aside.
13. The appellant authority is directed to pass appropriate orders in that appeal preferred by the petitioner-appellant on merits in accordance with law.
14. The aforesaid exercise be completed by the aforesaid authority expeditiously and preferably within a period of four months from the date of presentation of this order.
15. Accordingly, present appeal is allowed.
Order Date :- 9.6.2021 Pramod Tripathi (Prakash Padia,J.) (Sanjay Yadav, A.C.J.)