Orissa High Court
Union Of India And Others vs Biswanath Kumar And Anr. ..... Opp. ... on 31 July, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 6268 OF 2021
In the matter of an application under Articles 226 and
227 of the Constitution of India.
--------------
AFR Union of India and others ..... Petitioners
-Versus-
Biswanath Kumar and Anr. ..... Opp. Parties For Petitioners : Mr. S.K. Swain, Sr. Panel Counsel, Govt. of India along with M/s Subrat Mishra, S. Mohapatra and B.N. Swarnkar, CGC For Opp. Parties : M/s N.R. Routray, J. Pradhan, T.K. Choudhury and C.K. Mohanty, Advocates [O.P.No. 1] P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE M.S. RAMAN Date of hearing: 25.07.2023 :: Date of judgment: 31.07.2023 DR. B.R. SARANGI, J. The Union of India and its functionaries, who were opposite parties before the Central Administrative Tribunal, Cuttack Bench, Cuttack, have // 2 // filed this writ petition seeking to quash the order dated 18.01.2021 passed by the said Tribunal in M.A. No. 544 of 2020 (arising out of O.A. No. 289 of 2020) condoning the delay of four years in filing O.A. No. 289 of 2020, which was filed by opposite party no.1 under Section 19 of the Administrative Tribunals Act, 1985 challenging the charge memorandum dated 20.01.2014, inquiry report dated 14.05.2015, order of punishment dated 26.06.2015, order dated 03.03.2016 passed by the appellate authority and order dated 13.05.2016 passed by the revisional authority, with a prayer to restore the stage of opposite party no.1 as it was prior to implementation of the order of punishment dated 03.03.2016, and to pay him arrear salary with interest.
2. The factual matrix of the case, in a nutshell, is that opposite party no.1 filed O.A. No. 289 of 2020 before the Central Administrative Tribunal, Cuttack Bench, Cuttack under Section 19 of the Administrative Tribunals Act, 1985 seeking following prayers:-
// 3 // "(i) To quash the charged memorandum dated 20.10.2014, inquiry report dated 14.05.2015, order of punishment dated 26.06.2015, order dated 03.03.2016 passed by the Appellate Authority and order dated 13.05.2016 passed by the Revisional Authority under Annexure-A/1, A/3, A/4 series, A/6 & A/8 respectively.
(ii) And to direct the respondents to restore the stage of the applicant as it was prior to implementation of order of punishment dated 03.03.2016.
(iii) And direct the respondents to pay the arrear salary with interest."
In essence, opposite party no.1, as the applicant in the above noted Original Application, had sought to quash the order dated 26.06.2015 passed by the disciplinary authority imposing punishment, as well as the order dated 03.03.2016 passed by the appellate authority and the order dated 13.05.2016 passed by the revisional authority confirming the order passed by the appellate authority. Since the Original Application, referred to above, was filed after more than four years of passing of the order by the revisional authority, the same was grossly barred by delay and laches under Section 21 of the Administrative Tribunals Act, 1985. Therefore, the // 4 // said Original Application was filed followed by M.A. No.544 of 2020 with a prayer to condone the delay of four years on the plea of continuing cause of action. But the petitioners, who were opposite parties before the Tribunal, took the plea that in a similar case, i.e., Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, AIR 2014 SC 1141, the apex Court disapproved entertainment of the writ petition, which was filed challenging punishment order in a disciplinary proceeding after four years. The further plea taken by them was that the other reasons of filing mercy appeal dated 30.06.2020 and COVID-19 are so made for the purpose of the case and are self-serving without any reasonable nexus with cause of delay in filing O.A. No. 289 of 2020. But, without considering the same, the Tribunal, vide order dated 18.01.2020, allowed M.A. No. 544 of 2020 and condoned the delay of four years in filing O.A. No. 289 of 2020. Hence, this writ petition.
3. Mr. S. Swain, learned Senior Panel Counsel, Govt. of India appearing for the petitioners contended that // 5 // the Tribunal has committed gross error apparent on the face of law and facts in passing the impugned order dated 18.01.2020 in condoning the delay of four years by allowing M.A. No. 544 of 2020 and consequentially directing to entertain O.A. No. 289 of 2020 for adjudication on merits. It is contended that pendency of mercy petition and other reasons assigned for condoning the delay are not sufficient to attract Section 21(3) of the Administrative Tribunals Act,1985, inasmuch as, opposite party no.1 was aware that there is no such provision under the service law that after exhaustion of revisional remedy, vide order dated 13.05.2016, seeking to challenge the order of punishment imposed in 2015 other than to approach the Tribunal. Furthermore, the representation to try to save limitation/inordinate delay by filing mercy petition dated 30.06.2020 could not have been a sufficient cause to save limitation period of four years, as representations after expiry of period of limitation would not be a satisfactory explanation to condone inordinate delay. It is further contended that condonation of delay of // 6 // preferring the Original Application after four years is totally different from the decision of the Supreme Court of India in Tukaram Kanha Joshi v. Mahastrata Industrial Development Corporation, (2013) 1 SCC 353, as has been relied upon by opposite party no.1 before the Tribunal. Thereby, the order impugned so passed by the Tribunal cannot be sustained in the eye of law. It is further contended that the reliance placed by the petitioners in Chennai Metropolitan Water Supply and Sewerage Board (supra) having not been taken into consideration by the Tribunal in proper perspective, the order so passed by the Tribunal cannot be sustained. It is further contended that the facts pleaded in O.A. No. 289 of 2020 revealed that charge no.(ii) in the Articles of Charges was grave one of theft of non-refund of money collected from the passengers, which has been proved in a properly held disciplinary proceeding and the major penalty had been reduced by the appellate authority. As such, the apex Court time and again held that such acts entail dismissal from service. Therefore, imposition of amended // 7 // punishment by the appellate authority of reduction by one stage for a period of two years with cumulative effect is not shockingly disproportionate so as to entail hearing O.A. No. 289 of 2020 on merits by allowing condonation of delay application by the Tribunal, which requires interference of this Court in this writ petition.
4. Mr. N.R. Routray, learned counsel appearing for opposite party no.1 vehemently justified the order passed by the Tribunal in condoning the delay of four years by allowing M.A. No. 544 of 2020 (arising out of O.A. No. 289 of 2020) and contended that since O.A. No. 289 of 2020 is still pending for consideration before the Tribunal, the matter should be heard on merits instead of taking a plea of limitation, opposite party no.1 should not have been denied the opportunity of being heard. Thereby, it is contended that the Tribunal is well justified by passing the order impugned, which does not require any interference of this Court. It is further contended that in view of the judgment of the apex Court in Tukaram Kanha Joshi (supra), the Tribunal is well justified in condoning // 8 // the delay of four years for entertaining the Original Application, so that the matter can be heard on merits and, as such, opposite party no.1 cannot be dislodged on technical plea of limitation to ventilate his grievance before the Tribunal, when his mercy petition is pending adjudication. Consequentially, dismissal of the writ petition is sought for.
5. This Court heard Mr. S. Swain, learned Senior Panel Counsel, Govt. of India appearing for the petitioners and Mr. N.R. Routray, learned counsel appearing for opposite party no.1 in hybrid mode and perused the record. Pleadings having been exchanged between the parties, the matter is being disposed of finally with the consent of learned counsel for the parties at the stage of admission.
6. In pursuance of Article 323 (4) of the Constitution, in order to provide for adjudication or trial by Administrative Tribunals on disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in // 9 // connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under control of the Government of India or of any Corporation owned or controlled by the Government and for matter connected therewith, the Parliament enacted a law called "Administrative Tribunals Act, 1985", which received assent of the President on 27.02.1985. In pursuance thereof, Central Administrative Tribunal, Cuttack Bench was established. The establishment of Administrative Tribunal under the aforesaid provision of the Constitution became necessary since a large number of cases relating to service matters were pending before various Courts. It was also expected that the setting up of such Administrative Tribunals to deal exclusively with service matters would go a long way in not only reducing the burden of the various Courts and thereby giving them more time to deal with other cases expeditiously but would also provide to the persons covered by the Administrative Tribunals speedy relief in respect of their grievances. The objects and reasons behind establishment // 10 // of Administrative Tribunals were to deal with the following aspects:-
"(a) the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each Tribunal;
(b) the procedure (including provision as to limitation and rules of evidence) to be followed by the State Tribunals;
(c) exclusion of the jurisdiction of all Courts, except that of the Supreme Court under Article 136 of the Constitution relating to service matters;
(d) the transfer to each Administrative Tribunal of any suit or other proceedings pending before any Court or other authority immediately before the establishment of such Tribunals would have been within the jurisdiction of such Tribunal if the cause of action on which such suits or proceedings are based had arisen after such establishment."
7. On careful perusal of the above objects and reasons behind establishment of the Tribunal, it is evident that under clause-(b) it has been specifically provided that the procedure, including the provision as to limitation and rules of evidence, is to be followed by the Tribunals. Thereby, the limitation prescribed under the Act for adjudication of the case formed part of the statement of // 11 // objects and reasons behind establishment of such Tribunals. Thereby, the statement of objects and reasons appended to the Act has some justification and that has to be achieved in letter and spirit.
8. In Bar Council of India v. Union of India, (2012) 8 SCC 243, the apex Court referred to the statement of objects and reasons appended to the bill inserting Chapter-VI A in the Legal Services Authorities Act, 1987, as well as the long title of the Chapter to hold that it provides for pre litigation conciliation and settlement procedure, since disputes relating to public utility services deserve to be settled expeditiously. By brining in the law, such litigation was sought to be nipped in the bud by first affording the parties an opportunity to settle their dispute through the Permanent Lok Adalat before the dispute was brought before any court.
In Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa, (1987) 3 SCC 279: AIR 1987 SC 1454, the apex Court held that the statement of objects and reasons was used for holding that the Orissa Forest // 12 // Produce (Control of Trade) Act, 1981 did not apply to forest produce grown in government forests and that the Act was restricted in its application to forest produce grown on private land.
In P. Nallammal v. State, AIR 1999 SC 2556:
(1999) 6 SCC 559, the apex Court held that the statement of objects and reasons appended to the bill which became the Prevention of Corruption Act, 1988 was used for holding that "the legislative intent is manifest" that abettors of all offences under the Act be dealt with along with the public servant by the special judge appointed under the Act.
In Bhaiji v. Sub-Divisional Officer Thandla, (2003) 1 SCC 692, summarizing the use of the Statement of Objects and Reasons in the process of construction, Lahoti, J said "Reference to the statement of objects and reasons is permissible for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute and the evil which the statute sought to remedy. The weight of judicial // 13 // authority leans in favour of the view that the statement of objects and reasons cannot be utilized for the purpose of restricting and controlling the plain meaning of the language employed by the legislature in drafting a statute and excluding from its operation such transaction which it plainly covers."
In A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, AIR 1956 SC 246, the apex Court held that statement of objects and reasons has been made for judging the reasonableness of a classification under an Act to see if it infringes the fundamental right guaranteed under Article 14 of the Constitution.
9. With this backdrop of statement of objects and reasons, now it is required to see the provisions contained under Sections 20 and 21 of the Administrative Tribunals Act, 1985, which reads as under:-
"20. Applications not to be admitted unless other remedies exhausted.--(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
// 14 // (2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,--
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. (3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be of one of the remedies which are available unless the applicant had elected to submit such memorial.
21. Limitation.--(1) A Tribunal shall not admit an application,--
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause
(b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-
section (1), where // 15 //
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub- section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub- section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub- section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."
10. In view of the aforementioned provisions, it is made clear that a mandate has been put on the Tribunal by using the word "shall" not to admit an application in a case where a final order such as is mentioned in clause-
(a) of Sub-section (2) of Section 20 has been made in connection with the grievance unless the application is // 16 // made, within one year from the date on which such final order has been made.
In State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912, the apex Court held that the use of word "shall" is a presumption that the particular provision is imperative. As such, instances have been taken on rule-57(2) of the Schedule-II to the Income Tax Act, 1961, which provides that the full amount of purchase of money payable "shall" be paid by the purchaser to the Tax Recovery Officer on or before the fifteenth day from the date of sale of property. Thereby, by using the word "shall", the apex Court held that it is mandatory on the part of the purchaser to pay the full amount to the Tax Recovery Officer. As such, following this principles, the apex Court time and again held similar view in various subsequent judgments and ultimately got approval in the case of Pesara Pushpamala Reddy v. G. Veera Swamy, (2011) 4 SCC
306. // 17 // In C.N. Paramsivam and Anr. V. Sunrise Plaza and others, (2013) 9 SCC 460, the apex Court relying upon the word "shall" as well as the earlier decision of the Court on pari materia provision in Order XXI of the CPC, held that making of the deposit by the intending purchaser is mandatory.
In Sainik Motors v. State of Rajasthan, AIR 1961 SC 1480, Hon'ble Justice Hidayatullah observed that the word "shall" is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands and points out.
In State of U.P. v. Babu Ram, AIR 1961 SC 751, Hon'ble Justice Subarao, observed that when a statute uses the word "shall", prima facie it is mandatory, but the court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute.
In Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638, the apex Court, while interpreting Section // 18 // 202 of the Cr.P.C, which provides that the Magistrate "shall" in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding, held that the word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. However, on looking at the intention of the Legislature, the Court found that the provision is aimed at preventing innocent persons from being harassed by unscrupulous persons making false complaints, and therefore the inquiry or investigation contemplated by the provision before issuing summons was held to be mandatory.
11. Taking into consideration the aforementioned analogy, applying the provisions under Section 21(1) and considering the legislative intent attached to the // 19 // provisions, it is made clear that using the word "shall" the legislature have put a mandate, i.e., mandatory condition on the Tribunal to entertain the Original Application in connection with the grievance of the applicant within one year from the date on which such final order has been made. On perusal of the provisions contained under Section 21(1) and (2), it is crystal clear that in a case where an appeal or representation such as is mentioned in Clause (b) of Sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period, the Tribunal can admit an application, whereas Sub-section (2) of Section 21 makes clear that notwithstanding anything contained in Sub-section (1) where the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the // 20 // matter to which such order relates, but no proceedings for the redressal of such grievance had been commenced before the said date before any High Court. The application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or as the case may be, clause (b), of Sub-section (1) or within a period of six months from the said date, whichever period expires later. Sub-section (3) of Section 21 states by using non-abstante clause that notwithstanding anything contained in Sub-section (1) or Sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of Sub-section (1) or, as the case may be, the period of six months specified in Sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. The using of word "notwithstanding", a non-obstante clause, under Sub-section (3) of Section 21 gives overriding effect over the provisions.
In Union of India v. G.M. Kokil, 1984 (Supp.) SCC 196: AIR 1984 SC 1022, the apex Court held that a // 21 // clause beginning with "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force", is sometimes appended to a section in the beginning, with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non-obstante clause.
In T.R. Thandur v. Union of India, AIR 1996 SC 1643, the apex Court held that a non-obstante clause may be used as a legislative device to modify the ambit of the provision or law mentioned in the non-obstante clause or to override it in specified circumstances.
In Central Bank of India v. State of Kerala, (2009) 4 SCC 94, the apex Court held that while interpreting a non statute clause the court is required to find out the extent to which the Legislature intended to give it an overriding effect.
In P. Virudhachalam v. Management of Lotus Mills, AIR 1998 SC 554: (1998) 1 SCC 650, the // 22 // apex Court held that the expression "notwithstanding anything in any other law" occurring in a section of an Act cannot be construed to take away the effect of any provision of the Act in which that section appears.
Therefore, the effect of provisions contained under Sub-sections (1) and (2) of Section 21 with regard to condonation of delay is dependent upon the satisfaction of the Tribunal if the application shows the sufficient cause.
12. The pari materia provisions for condonation of delay are derived from Section 5 of the Limitation Act. Therefore, the word "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice when no negligence nor inaction, nor want of bona fide, is imputable to the appellant. The term "sufficient cause" under Section 5 of the Limitation Act apparently covers not only those circumstances (such as the Courts being closed or time being spent in obtaining copies, or the party being a minor or insane) which the law expressly recognizes as // 23 // extending the time, but also such circumstances as are not expressly recognized but which may appear to the Court to be reasonable.
In Sitaram Ram Charan v. M.N. Nagrasharma, AIR 1960 220, the apex Court held that "sufficient cause" means the appellant's explanation for the delay has to cover the whole period of the delay.
In Lonand Grampanchayat v. Ramgiri, AIR 1968 SC 222, the apex Court held that the word "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable.
In State of West Bengal v. Administrator, Howrah Municipality, (1972) 1 SCC 366, the apex Court held that the expression "sufficient cause" occurring in Section 5 of the Act would mean that "no negligence", "no inaction" or mala fides is imputable to the party.
// 24 // Similar view has also been taken by the apex Court in Ram Nath Sao v. Gobardhan Sao, (2002) 3 SCC 195.
In Sankaran Pillai v. V.P. Venguduswami, (1999) 6 SCC 396: AIR 1999 SC 3060, while construing the provisions contained under Section 11(4) of the T.N. Building (Lease and Rent Control) Act, 1960, the apex Court held that the expression "sufficient cause" under Section 11 (4) of the Act necessarily implies an element of sincerity, bona fides and reasonableness.
In State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94: AIR 2000 SC 2306, the apex Court held that the expression "sufficient cause"
occurring in Section 5 of the Limitation Act would mean that a liberal approach be given for sufficiency of cause for condonation of delay in filing the appeal.
13. In State of Nagaland v. Lipok Ao, AIR 2005 SC 2191, the Court referred to several precedents on the subject and observed that the proof of "sufficient cause" is // 25 // a condition precedent for exercise of discretion vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. The Court also took cognizance of the usual bureaucratic delays which take place in the functioning of the State and its agencies/ instrumentalities and observed:
"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. The State which represents 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 of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal."
14. The apex Court in Maniben Devraj Shah v. Muinicipal Corporation of Brihan Mumbai, 2012 (5) // 26 // SCC 157, held in paragraphs 24 and 25 to the following effect:-
"24. 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. 25. In case involving the State and its agencies/instrumentalities, the court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest".
After holding as above, in paragraph 28 the apex court has stated as follows:
"28.The application filed for condonation of delay and the affidavits of Shri Sirsikar are conspicuously silent on the following important points:
(a) The name of the person who was having custody of the record has not been disclosed.
// 27 //
(b) The date, month and year when the papers required for filing the first appeals are said to have been misplaced have not been disclosed.
(c) The date on which the papers were traced out or recovered and name of the person who found the same have not been disclosed.
(d) No explanation whatsoever has been given as to why the applications for certified copies of the judgments of the trial court were not filed till 23-08-2010 despite the fact that Shri Sirsikar had given intimation on 12-5-2003 about the judgments of the trial court.
(e) Even though the Corporation has engaged a battery of lawyers to conduct cases on its behalf, nothing has been said as to how the transfer of Shri Ranindra Y. Sirsikar operated as an impediment in the making of applications for certified copies of the judgments sought to be appealed against."
15. In Amalendu Kumar Bera and others v. State of West Bengal, 2013 (4) SCC 52, the apex Court in paragraph-9 held as follows:
"We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent State. 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 // 28 // business requires its pedantic approach from public justice perspective. In a recent decision in Union of India v. Nripen Sarma, 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."
16. In Office of the Chief Post Master General & Ors. v Living Media India Ltd. & Anr. : 2012 AIR SCW 1812, it has been held as follows:
"13. In our view, it is the right time to inform all the Government bodies; their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dated, according to us, // 29 // the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."
17. It is apt to mention here that referring to the judgment of this Court in Bishnupriya Routray (supra), which was authored by one of us (Dr. Justice B.R. Sarangi), similar orders were passed by this Court and challenging those orders the State had moved the apex Court in large number of S.L.Ps., which were dismissed by confirming the orders passed by this Court refusing to condone the delay in preferring the appeal.
18. In State of Odisha and another v. Miss Sumitra Das, 2021 (II) ILR CUT 241, the Division Bench of this Court had relied upon the judgment of the apex Court in the case of State of Madhya Pradesh v. Bherulal, decided on 15.10.2020 in SLP (C) Dairy No. 9217 of 2020, wherein the SLP was dismissed as time barred and the apex Court awarded cost of Rs.25,000/- on the State of M.P. and, as such, the judgment of the // 30 // apex Court was also relied upon by this Court in paragraph-6 of the judgment to the following effect:-
"6. Thereafter the aforementioned decision has been referred to and reiterated in a number of orders of the Supreme Court. A sampling of such orders is as under:
(i) Order dated 13th January 2021 in SLP No.17559 of 2020 (State of Gujarat v. Tushar Jagdish Chandra Vyas & Anr.)
(ii) Order dated 22nd January 2021 in SLP No.11989 of 2020 (The Commissioner of Public Instruction & Ors. v.
Shamshuddin)
(iii) Order dated 22nd January 2021 in SLP No.25743 of 2020 (State of Uttar Pradesh & Ors v. Sabha Narain & Ors.)
(iv) Order dated 4th February 2021 in SLP No.19846 of 2020 (Union of India v.
Central Tibetan Schools Admin & Ors)
(v) Order dated 11th January 2021 in SLP No.22605 of 2020 (The State of Odisha & Ors v. Sunanda Mahakuda)"
From the above it would be evident that by order dated 11.01.2021 passed in SLP No.22605 of 2020 (State of Orissa v. Sunanda Mahakuda) filed by the State of Odisha, the apex Court dismissed the SLP imposing cost of Rs.25,000/- for filing a belated SLP without offering any credible explanation.
// 31 //
19. Keeping in view the aforementioned interpretation appended to the words "cause shown", now the same has to be seen from the application for condonation of delay filed under Section 21(3) of the Administrative Tribunals Act in M.A. No.544 of 2020. The opposite party no.1 has pleaded in pagraphs-3 and 4 to the following effect:-
"3. That, the petitioner humbly and respectfully submitted here that the Appellate Authority has reduced the original punishment to "Reduction of pay by one stage for a period of two years with postponement of future increment of pay", which will cause heavy financial loss not only during his service carrier but also in his retirement financial benefits as well as to his pension after retirement. The punishment imposed on the applicant not only disproportionate but also shocking one for the alleged fabricated case.
It is pertinent to mention here that the petitioner could have field the mercy petition in the month of March or April but due to COVID-19 Pandemic it causes some delay not only filing the mercy appeal but also the Original Application.
4. That, the petitioner humbly and respectfully submitted here that the cause of action is arising in each and every month at the time of receiving salary in lower rate. More over the delay in approaching this Hon'ble Tribunal can be condoled by this Hon'ble tribunal in exercising this power conferred Under Section 21(3) of the AT Act // 32 // 1985 to save this poor applicant from high handness of the respondents."
20. The reasons, which have been assigned in the above mentioned paragraphs, are that punishment imposed by the disciplinary authority was modified by the appellate authority by reduction of pay to one stage for a period of two years with postponement of future increment of pay, which will cause heavy financial loss not only during his service career but also to his retirement financial benefits as well as to his pension after retirement. Needless to say, the order of punishment which has been passed against him by the disciplinary authority on 14.05.2015, against which the petitioner preferred appeal and on consideration of the same, the appellate authority reduced the punishment imposed by the disciplinary authority to the aforesaid extent. Having not been satisfied with such reduction of punishment imposed by the appellate authority, the petitioner preferred revision which was also disposed of vide order dated 03.03.2016 confirming the order passed by the appellate authority. In view of such fact, it is made clear // 33 // that opposite party no.1 is well aware of the position that against the order reducing the penalty, he has to suffer to the extent he has indicated in the application itself. Therefore, if at all the petitioner is not satisfied to the reduction of punishment imposed by the appellate authority made confirmed by the revisional authority, it is incumbent upon him to approach the Tribunal by filing appropriate application within one year from the date of such passing of order as per the provisions contained under Section 21(1) of the Administrative Tribunals Act. But the petitioner enjoyed the punishment for a period of four years without any objection. Simply filing a mercy petition, by way of representation, cannot invoke Section 21(3) of the Administrative Tribunals Act for condonation of delay of four years. In support of his stand, reliance was placed by opposite party no.1 on Tukaram Joshi (supra), wherein the apex Court held as under:-
"When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserve to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a nor-deliberate delay"
// 34 // The apex Court further observed that where third party interest is not affected then the court can condone the delay and accordingly condoned the delay of 30 years. But the factual matrix of the said case is different from that of the present case. More so, the present case is totally distinguishable.
21. It is manifest from the order dated 18.01.2021 of the learned Central Administrative Tribunal, Cuttack Bench, Cuttack that the Members were swayed away by the contentions of opposite party no.1 to the effect that "The appellant filed this OA on 27.07.2020. In case the delay is not condoned and the applicant is not given opportunity to challenge the order of punishment imposed upon him, then he will be put to financial hardship. Besides that it will affect his official performance in future." What has been ignored consideration by the Tribunal is that the punishment was inflicted on account of illegal gratification by opposite party no.1. Nonetheless, the authorities have considered the case of opposite party no.1 and reduced the quantum of punishment vis-à-vis // 35 // grave nature of allegation which stood established in the proceedings. However, going by the petition for condonation of delay styled under Section 21(3) of the Administrative Tribunals Act, 1985 does not show any "sufficient cause" much less any cause for delay. Mere statement that mercy petition was pending, would not save the limitation to run.
22. This Court would wish to take note that litigations/appeals are expected to be filed within the period of limitation contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable. The Courts are vested with the power of discretion to condone the delay, that does not mean that enormous delay in instituting the case is to be condoned mechanically. Undoubtedly, if the reasons are candid and convincing, then the Courts are empowered to exercise its power of discretion for the purpose of condoning the delay. Power of discretion is a double-edged weapon. Thus, // 36 // discretionary powers are to be exercised cautiously and uniformly so as to avoid any prejudice to either of the parties. Exercise of power of discretion if made excessively, it would defeat the purpose and object of the law of limitation. The Courts are expected not to travel beyond the permissible extent, so as to condone the enormous delay in a routine or mechanical manner. Power of discretion is to be exercised to mitigate the injustice, if any occurred to the litigants.
23. Any citizen, who slept over his right, cannot wake up one fine morning and knock the doors of the Court for redressal of his grievances. The person, who slept over his right, has to necessary lose his right on account of efflux of time, which caused expiry of the cause. In the event of institution of appeal or litigation after a prolonged period, the right of defence will also be affected and further it will lead to unnecessary harassment for a prolonged period. All these mitigating factors are to be considered while condoning the huge delay in instituting the litigations/appeals. Thus, the law // 37 // of limitation has got a definite reasoning and logic. Various time limitations prescribed under many statutes are adopting the "Doctrine of Reasonableness". The principles of reasonableness would be adopted with reference to the nature of litigations to be instituted. Various time limits are prescribed for civil litigations, appeals and other varieties of litigations, considering various factors and by applying the doctrine of reasonableness. Thus, the law of limitation became substantive and to be followed scrupulously in all circumstances and on exceptional cases, the delay is to be condoned, if the reasons are genuine and acceptable.
24. A fine distinction is to be drawn in respect of 'acceptability' and 'unacceptability', as far as the condonation of delay is concerned. The reasons and its genuinity are important for condoning the delay. It became unnecessary that the Courts have to consider the precedents and condone the delay thereafter or reject the same. There are judgments for and against, but predominantly the facts, circumstances and the genunity // 38 // of the reasons of each case plays a pivotal role in considering the relief of condonation of delay. It is, therefore, trite to say that Judgments dealing with the condonation of delay may not lay down any standard or objective test but is purely an individualistic test. The Court is required to examine while adjudicating the matter relating to condonation of delay on exercising judicial discretion on individual facts involved therein. There does not exist any exhaustive list constituting sufficient cause. The applicant/petitioner is required to establish that in spite of acting with due care and caution, the delay had occurred due to circumstances beyond his control and was inevitable.
25. In the present context, it is the judgment relied upon by the petitioners in Chennai Metropolitan Water Supply and Sewerage Board (supra) is applicable, which relates to service matter, wherein the apex Court disapproved the entertainment of challenging the punishment order in a disciplinary proceeding after four years, as it suffers from delay and laches, by holding that // 39 // the petitioner was careless to his duty and responsibilities and had been dismissed for unauthorized absence and, as such, delay in approaching Court in circumstances assumes more importance and without justification delay cannot be ignored. As such, the petition is liable to be dismissed for delay. The apex Court further held that the doctrine of delay and laches should not be lightly brushed aside. A writ Court is required to weigh the explanation offered and the acceptability of the same. In paragraph-16 of the said judgment, the apex Court held as under:-
"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal lay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a // 40 // phoenix. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorizedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons- who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In ou considered opinion, such dealy does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
26. In view of the aforesaid judgment of the apex Court, it is made clear that the delay, which was caused in approaching the writ Court, should not be lightly interfered with by condoning the same. Therefore, the ratio decided by the apex Court in the aforementioned judgment is fully applicable to the present case and without taking into consideration the ratio decided in the // 41 // said case in proper perspective, the Tribunal has committed gross error apparent on the face of record by condoning the delay of four years for entertaining the Original Application on merits in the name of grant of substantial justice, cannot be sustained in the eye of law.
27. In view of the aforesaid facts and law, as discussed above, the inevitable conclusion arrived at by this Court is that the Tribunal was not justified in condoning the delay of four years in preferring the Original Application before the Central Administrative Tribunal, Cuttack Bench, Cuttack to consider the imposition of punishment by the disciplinary authority, which was reduced by the appellate authority in appeal and confirmed by the revisional authority in revision. Thereby, the order so passed by the Tribunal on 18.01.2021 in M.A. No. 544 of 2020 (arising out of O.A. No. 289 of 2020) cannot be sustained in the eye of law and the same is liable to be quashed and is hereby quashed. As a consequence of non-entertainment of the application for condonation of delay, i.e., M.A. No.544 of // 42 // 2020, the O.A. No. 289 of 2020 also cannot be entertained by the Tribunal.
28. In the result, therefore, the writ petition stands allowed. However, under the circumstances of the case, there shall be no order as to costs.
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DR. B.R. SARANGI,
JUDGE
M.S. RAMAN, J. I agree.
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M.S. RAMAN,
JUDGE
Orissa High Court, Cuttack
The 31st July, 2023, Ashok
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA Date: 31-Jul-2023 17:49:06