Madras High Court
The Employees State Insurance ... vs M/S.Rane Engine Valves Limited on 6 January, 2021
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.M.P.No.9403 of 2018 in
C.M.A.SR.No.102115 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.P.No.9403 of 2018
in
C.M.A.SR.No.102115 of 2017
The Employees State Insurance Corporation,
Rep.by the Regional Director,
143, Sterling Road, Nungambakkam,
Chennai – 600 034. .. Petitioner
Vs.
M/s.Rane Engine Valves Limited,
No.5, Noble Street,
Alandur, Chennai – 600 016.
Rep.by its Authorised Signatory
Mr.H.Ramachandran. .. Respondent
PRAYER: C.M.P.No.9403 of 2018 is filed under Section 82(4) of ESI
Act r/w Section 5 of the Limitation Act, to condone the delay of 761 days
in filing the above Civil Miscellaneous Appeal, against the order and
judgment passed in EIOP No.129 of 2005 dated 21.08.2016 on the file of
the Employees State Insurance Court(Principal Labour Court), Chennai.
C.M.A.SR.No.102115 of 2017 is filed under Section 82 of the
Employees Insurance Act, against the order and judgment passed in EIOP
No.129 of 2005 dated 21.08.2016 on the file of the Employees State
Insurance Court(Principal Labour Court), Chennai.
1/10
https://www.mhc.tn.gov.in/judis/
C.M.P.No.9403 of 2018 in
C.M.A.SR.No.102115 of 2017
For Petitioners : Mr.S.P.Srinivasan
For Respondent : No appearance
ORDER
The Civil Miscellaneous Petition on hand is filed under Section 82(4) of ESI Act r/w Section 5 of the Limitation Act, to condone the delay of 761 days in filing the Civil Miscellaneous Appeal, against the order and judgment passed in EIOP No.129 of 2005 dated 21.08.2016 on the file of the Employees State Insurance Court(Principal Labour Court), Chennai.
2. The Regional Director, The Employees State Insurance Corporation is the petitioner and the petition is filed to condone the delay of 761 days in filing the Civil Miscellaneous Appeal.
3. The only reason stated in the affidavit filed in support of this miscellaneous petition is that there is an administrative delay. Mere administrative delay is insufficient to condone the enormous delay of 761 days in filing the appeal. Except the above reason, no other reason has been stated for condoning the delay of 761 days in filing the above 2/10 https://www.mhc.tn.gov.in/judis/ C.M.P.No.9403 of 2018 in C.M.A.SR.No.102115 of 2017 appeal.
4. This Court has to consider whether such a long administrative delay can be condoned in a mechanical manner or not. Undoubtedly, there is a possibility of some administrative delay in certain unavoidable circumstances. However, such administrative delay, if exceeds and the delay is enormous, then it cannot be condoned in a mechanical manner. The Petitioner being a public authority, they are bound to be vigilant and prompt in performing their duties and responsibilities. Small amount of delay can be condoned by taking a lenient view. However, long delay cannot be condoned in the absence of any valid and acceptable reasons.
5. In recent years, these public authorities are found to be frequently negligent and committing dereliction of duty in respect of dealing with such appeals and other cases. There is a general trend that the public authorities are having lack of sincerity and committing dereliction on duty. These negligence and dereliction of duty are serious misconducts and therefore, the higher authorities are bound to ensure that 3/10 https://www.mhc.tn.gov.in/judis/ C.M.P.No.9403 of 2018 in C.M.A.SR.No.102115 of 2017 the officials are performing their duties and responsibilities with utmost care and with devotion to duty. Any such lapse or dereliction of duty is to be enquired into properly and all appropriate actions are to be initiated to ensure initiations of appropriate disciplinary proceedings. Therefore, the authorities cannot approach the Court in a routine or mechanical manner with a huge delay in filing an appeal. Every such delay is to be explained in a proper manner and the Courts are also to ensure that unexplained delay is not condoned in a routine manner.
6. Perusal of the affidavit shows that there is absolutely no acceptable reason for the purpose of condoning the enormous delay of 761 days in filing the appeal. The reasons stated in the affidavit must be convincing, enabling this Court to consider the condonation of delay. Huge delay cannot be condoned in a routine manner. Law of Limitation is substantive. Condonation of delay is an exception. Only on genuine reasons, delay can be condoned by exercising the power of discretion. 4/10 https://www.mhc.tn.gov.in/judis/ C.M.P.No.9403 of 2018 in C.M.A.SR.No.102115 of 2017
7. Mechanical way of condoning delay is undoubtedly impermissible. The condonation of delay can never be a mechanical affair and the High Court cannot condone the delay in a routine manner. Courts are bound to ensure that the reasons for condoning such delays are recorded, so as to set out a precedent and to avoid mechanical way of condonation of delay. When the law provides limitation for preferring an appeal and the proviso clause as contemplates the power of discretion to the Court to condone the delay, then such discretionary powers are to be exercised judiciously and by recording reasons. It is not as if, the High Courts can condone the delay in a routine manner, so as to dilute the law of limitation as contemplated under the Statutes. Thus, in all cases, where there is an enormous delay in filing an appeal, the Courts are bound to ascertain the reasons and its genuinity and the acceptability of such reasons. Every litigant is expected to prefer an appeal within the period of limitation stipulated in the statute. On account of certain unavoidable reasons, if the appeal is filed with some delay, then the Courts are vested with the discretionary power to condone such a delay. Rule is to file an appeal in time and condonation is an exception, which is to be exercised 5/10 https://www.mhc.tn.gov.in/judis/ C.M.P.No.9403 of 2018 in C.M.A.SR.No.102115 of 2017 discreetly and by recording reasons. Recording of reasons are of paramount importance in order to maintain consistency in the matter of condonation of delay.
8. Discretionary powers are expected to be exercised by the Courts judiciously. Any reasonable delay or the reasons, which all are valid and acceptable alone can form an opinion for exercising the power of discretion in the matter of condonation of delay. Thus, uncondonable delay cannot be condoned and what all are the condonable delay and the reasons stated and its validity, which all are important, so as to exercise the power of discretion. The very purpose and object of providing discretionary powers to the Courts are to ensure that the justice is done in an appropriate manner. Because of some genuine delay, the rights of the litigants cannot be neutralized and they should not be deprived of remedy from the Court of law. Therefore, the power of discretion, which is provided with genuine intention, cannot be diluted nor be neutralized by condoning the delay in a casual manner. Thus, while exercising the power of discretion, Courts are expected to be cautious and the reasons 6/10 https://www.mhc.tn.gov.in/judis/ C.M.P.No.9403 of 2018 in C.M.A.SR.No.102115 of 2017 for condonation must be recorded and in the absence of recording any reasons, the Courts are not considering the substantive law of limitation. Therefore, the law must prevail in all circumstances and discretion must be exercised discreetly and with caution.
9. Uncondonable delay cannot be condoned. Law expects that every such delay is to be explained. Unexplained delay cannot be condoned. Such unexplained delay is to be construed as uncondonable. Thus, delay under what circumstances, would be condonable is the relevant point to be considered by the Courts, while condoning such enormous delay.
10. Parties are expected to file their respective appeals within the period of limitation stipulated in the statute. Undoubtedly, certain unforeseen circumstances may be the reason for delay. However, such unforeseen circumstances or reasons, which all are genuine, must be clearly and truthfully explained in the affidavit filed in support of the miscellaneous petition. In the present case, reading of the affidavit 7/10 https://www.mhc.tn.gov.in/judis/ C.M.P.No.9403 of 2018 in C.M.A.SR.No.102115 of 2017 reveals that there is no valid and acceptable reason for the purpose of condoning the enormous delay of 761 days in filing an appeal. In the event of condoning such a long delay, undoubtedly, the same will set a wrong precedent and every such delay is to be condoned in other circumstances. Therefore, in the absence of any valid reasons, the Courts would not condone such an enormous delay. Undoubtedly, meagre delay can be condoned by taking a lenient view. Even to condone such a small delay, Court has to find out, whether there is any sensible reason for such delay. Therefore, the Courts have to adopt a liberal approach only in small delays and certainly not in the cases of enormous delay. Thus, this Court has no hesitation in arriving a conclusion that the reasons stated in the affidavit filed in support of the miscellaneous petition are neither candid nor convincing and therefore, the delay is to be construed as uncondonable.
11. In view of the reasons stated above, this Court has no hesitation in arriving a conclusion that the reasons stated by the petitioner for condoning the long delay of 761 days are neither candid nor convincing and consequently, the Civil Miscellaneous Petition in 8/10 https://www.mhc.tn.gov.in/judis/ C.M.P.No.9403 of 2018 in C.M.A.SR.No.102115 of 2017 C.M.P.No.9403 of 2018 stands dismissed and consequently, C.M.A.SR.No.102115 of 2017 is rejected at the SR Stage itself. No costs.
06.01.2021 Kak Index:Yes Speaking order To
1.The Employees State Insurance Court, (Principal Labour Court), Chennai.
2.The Sub Assistant Registrar, A.E.Section, High Court, Madras.
S.M.SUBRAMANIAM, J.
9/10 https://www.mhc.tn.gov.in/judis/ C.M.P.No.9403 of 2018 in C.M.A.SR.No.102115 of 2017 Kak C.M.P.No.9403 of 2018 in C.M.A.SR.No.102115 of 2017 06.01.2021 10/10 https://www.mhc.tn.gov.in/judis/