Himachal Pradesh High Court
H.P.S.E.B. Ltd. & Anr vs Amar Singh on 31 March, 2021
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP Nos. 5160, 5163 & 5164
.
of 2020
Decided on: 30.03.2021
CWP No. 5160 of 2020
H.P.S.E.B. Ltd. & Anr. ...Petitioners
Versus
Amar Singh ...Respondent
CWP No. 5163 of 2020
H.P.S.E.B. Ltd. & Anr. ...Petitioners
Versus
Chet Ram ...Respondent
CWP No. 5164 of 2020
H.P.S.E.B. Ltd. & Anr. ...Petitioners
Versus
Deep Ram ...Respondent
_____________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr. Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1
For the Petitioners : Mr. Tara Singh Chauhan, Advocate.
For the Respondent(s): Nemo.
(Through Video Conferencing)
Tarlok Singh Chauhan, Judge (Oral)
Since common questions of law and fact arise for consideration in these petitions, therefore, they are taken up together and are being disposed of by way of a common judgment.
1Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 01/04/2021 20:13:09 :::HCHP 2
2. The petitioners have questioned the impugned order dated 12.01.2018 passed by the learned erstwhile Tribunal.
.
3. As the petitions were filed after nearly three years from the aforesaid decision, this Court on 02.03.2021, passed the following order:-
The petitioners have assailed the order of the erstwhile H.P. Administrative Tribunal that was passed as far back as on 12th January, 2018, whereas the instant petition has been filed only on 30th October, 2020. However, there is no explanation whatsoever regarding the delay and laches in filing the writ petition. Therefore, supplementary affidavit explaining the delay be filed within four weeks from today.
4. The petitioners have now filed a supplementary affidavit of its Senior Executive Engineer, seeking to explain the delay in para-2, which reads as under:-
That as per the file No. HPSEB (Sectt) PO 321-11/07 vide diary Note No. 1417 the letter was received on 28.03.2018 in the office of Deputy director (pers) HPSEBL, Shimla-4, from the advocate and thereafter the department has further asked to supply the copy of petition reply to the field staff for pertaining to the case and thereafter on 24.08.2018 the matter was further processed in the same office and vide office noting dated 28.05.2018 the concerned officer has examined the case.
Thereafter the case was examined on 26.12.2018 by the concerned law branch and further on file remained there till 26.12.2018, Thereafter the file was moved to the Executive Director (pers.) HPSEBL, Shimla-4, whether the case of the respondent is covered or not. Thereafter on file was examined and it remained pending in the office of ::: Downloaded on - 01/04/2021 20:13:09 :::HCHP 3 the Deputy director (Pers.) till 11.09.2019 and it was discussed many times and thereafter finally opinion of the counsel was sought and 13.09.2019 the counsel give the .
opinion for assailing the judgment and same is not covered and thereafter the case was processed filing the CWP and finally decision was taken to again the judgment on 02.11.2019 and thereafter the record was sought w.r.t. the earlier CWP filed by the petitioner and labour court and high Court i.e. reference 59/2007 and CWP No. 6091/2010 and after receiving the record there was COVID and lock down was declared and after that things became normal the writ was filed thereafter without any delay on 30.10.2020.
5. A perusal of the affidavit would clearly reveal that there is a delay at every stage and except mentioning the dates of the receipt of the file and decision taken therein, there is no explanation as to why such delay has occurred. Though, it is stated by the Department that the delay was due to some unavoidable circumstances and genuine difficulty, but the fact remains that from day one, Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.
6. It is not in dispute that the person(s) concerned were well aware or conversant with the issue involved including the concept of delay and latches for taking up the matter by way of filing a writ before this Court. As repeatedly held by the Hon'ble Supreme Court that they cannot claim a separate period of limitation when the Department was possessed with competent ::: Downloaded on - 01/04/2021 20:13:09 :::HCHP 4 persons familiar with court proceedings. In absence of plausible and acceptable explanation, we are posing a question why the .
delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
7. We are fully conscious of the fact that we are dealing with the writ petitions for which there is no prescribed period of limitation nonetheless the principle of delay and latches equally apply to these cases.
8. Even while filing these petitions, the petitioners had taken it for granted that these petitions would be entertained as a matter of right without any question being raised regarding the delay and latches or else there should have at least been slightest whisper in the writ petitions and in the prayer(s) to this effect seeking condonation of delay and latches.
9. It is more than settled that in absence of plausible and acceptable explanation merely because the wing of the government happens to be the party, the same cannot be done mechanically, especially when there is negligence, inaction or lack of bonafide exhibited by the petitioners.
10. The Hon'ble Supreme Court has repeatedly deprecated the practice of the Government / Boards /University(ies) moving the Court(s) belatedly only by way of formality.
::: Downloaded on - 01/04/2021 20:13:09 :::HCHP 511. The Hon'ble Supreme Court in Special Leave Petition (Civil) No(s). 13348 of 2020, titled as The State .
of Madhya Pradesh & Anr. vs. Chaitram Maywade, decided on 27.10.2020, observed as under:-
"The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be incorrigible. The Special Leave Petition has been filed after a delay of 588 days. We had an occasion to deal with such inordinately delayed filing of the appeal by the State of Madhya Pradesh in SLP(C) D. No. 9217/2020- State of Madhya Pradesh & Ors. vs. Behru Lal in terms of our order dated 15th October, 2020.
We have penned down a detailed order in that case and we see no purpose in repeating the same reasoning again except to record what are stated to be the facts on which the delay is sought to be condoned. On 05.01.2019, it is stated that the Government advocate was approached in respect of the judgment delivered on 13.11.2018 and the Law Department permitted filing of the SLP against the impugned order on 26.05.2020. Thus, the Law Department took almost about 17 months' time to decide whether the SLP had to be filed or not. What greater certificate of incompetence would there be for the legal Department! We considered it appropriate to direct the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the legal Department as it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation. These kinds of excuses, as already recorded in the aforesaid order, are no more admissible in view of the judgment in Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr.-(2012) 3 SCC 563.::: Downloaded on - 01/04/2021 20:13:09 :::HCHP 6
WE have also expressed our concern that these kinds of the cases are only "certificate cases" to obtain a certificate of dismissal from the Supreme Court to put a .
quietus to the issue. The object is to save the skin of officers who may be in default. We have also recorded the irony of the situation where no action is taken against the officers who sit on these files and do nothing."
12. Similar reiteration of law can also be found in another judgment of the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary No(s). 971/2020, titled as The State of Uttar Pradesh & Anr. vs. Prem Chandra, decided on 27.11.2020, wherein it was observed as under:-
"We have set out the aforesaid facts to show the callous manner in which these proceedings have gone on. The fact that the matter should have gone on for two decades before the Tribunal in case of a labour dispute is itself a travesty of justice. That the petitioner takes its own time to assail the same before the High Court is the next stage and finally it has taken them almost three years to get this petition before the Supreme Court.
The application for condonation of delay is a usual one showing the file moving from one place to the other. The reliance again on different judgments including Collector, Land Acquisition, Anantnag & Anbr. vs. Mst. Katiji & Ors. - (1987) 2 SCC 107 is followed by referring to judgments of the different vintage, if one may say so. There is complete non-reference to the judgment in the case of Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr. (2012) 3 SCC 563. It is the latter judgment which sets out the position after technology has come to the aid of the Governments.::: Downloaded on - 01/04/2021 20:13:09 :::HCHP 7
We have had opportunity to deal with such matters and have extended cautions to the State Governments not to come to this Court only to obtain the certificate of .
dismissal what we have called as "certificate cases", so as to put the quietus to the matter and absolve the officers of the responsibility of not having performed their duties. A detailed discussion in this behalf is in SLP(C) Diary No. 9217/2020- State of Madhya Pradesh & Ors. vs. Bherulal decided on 15.10.2020. It appears that the cautions extended from time to time are falling on deaf ear. If the petitioners feel that the period of limitation prescribed by the Legislature is not sufficient, given their inefficiencies and incompetence, then it is for them to persuade the Legislature to change the Law of Limitation so far as applicable to the Government concerned. Till the Law remains, it must be applied as it stands. We also find that no action is ever taken against the personnel responsible for the delay and to save their skin, these special leave petitions are filed wasting judicial time.
We are thus, not inclined to let go the matter at this and do consider appropriate, as in the other cases, to impose costs on the petitioners for having wasted judicial time.
13. Not only this, the Hon'ble Supreme Court has repeatedly reiterated that government cannot take the plea of differential treatment in matters of condonation of delay. As a matter of fact, the Hon'ble Supreme Court very recently in case of SLP(C) Diary No(s). 19059 of 2020, titled as Deputy Conservator of Forests vs. Timblo Irmaos Ltd. & Ors., decided on 18.12.2020, refused to differentiate between the government and private party in the matter of belatedly ::: Downloaded on - 01/04/2021 20:13:09 :::HCHP 8 approaching the Court without sufficient cause. The relevant portion whereof reads as under:-
.
"A perusal of the impugned order shows that once again a reference has been made, as in similar cases of delay by the State to the judgment of this Court in the case of Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., AIR 1987 SC 1353. A claim was also made that the petitioner should not suffer for the fault of the counsel. The High Court opined that such substantial delay could not be condoned by mere shifting the blame on the counsel as the parties are required to keep track of the matter and there is negligence despite numerous opportunities.
We have dealt with the issue of Government authorities in approaching courts belatedly as if the Statute of Limitation does not exist for them. While referring to some reasons given for insufficiencies, we observed that the parties cannot keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government, (Collector, Land Acquisition, Anantnag & Anr. (supra). This situation no more prevail and this position had been elucidated by the judgment of this Court in office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr. (2012) 3 SCC 563. These aspects have been analyzed by us recently in SLP (C) No. D. 9217/2020-State of Madhya Pradesh & Ors. vs. Bheru Lal decided on 15.10.2020.
In the aforesaid judgment we have defined "certificate cases" the objective of which is only to put a quietus to the issue by recording that nothing could be done because the highest Court had dismissed the appeal. We have repeatedly deprecated such practice and process.
::: Downloaded on - 01/04/2021 20:13:09 :::HCHP 9The irony is that despite observations, no action was ever taken against officers who sit on the file and do nothing. The matter is further aggravated in the present case and .
even the present petition is filed with a delay of 462 days and once again the excuse is of change of counsel. We have repeatedly deprecated such attempts of the State Governments to approach this Court only to complete a mere formality. Learned counsel for the petitioner strenuously contends that there is valuable land involved. In our view, if it was so, then the concerned officers responsible for the manner in defending this petition must be made to pay for it.
We are thus constrained to dismiss the petition as barred by time and impose cost of Rs. 15,000/- on the petitioner for wastage of judicial time. We put it to the learned counsel that the cost would have been much greater but for the fact that a young counsel is appearing before us and we have given considerable concession in the costs on that factor alone.
14. It is more than settled that condition precedent for condoning the delay is always the existence of sufficient cause.
Whether the explanation furnished for the delay would constitute sufficient cause or not would depend upon the facts of each case? It cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the parties seeking condonation of delay. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bonafide can be imputed to the defaulting party.
::: Downloaded on - 01/04/2021 20:13:09 :::HCHP 1015. However, equally true the proposition that valuable right may accrue to the other party on account of delay or .
inaction of the opposite party.
16. As would be noticed from the explanation offered by the applicants, there was no serious attempt whatsoever to ensure that the files are attended and moved expeditiously from one desk to other. Not only inaction but there is a gross negligence on the part of the officials of the applicants and at the same time valuable right has accrued in favour of the respondents.
17. In view of the aforesaid discussion, we are of the considered view that these petitions are barred by the principle of delay and latches and accordingly the same are dismissed on this ground alone, so also pending application(s), if any.
(Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
30 th
March, 2021 Judge
(sanjeev)
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