Allahabad High Court
State Of U.P. Through Sec. Finance And ... vs Surendra Pal Singh And Others on 22 October, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- SERVICE BENCH No. - 7778 of 1991 Petitioner :- State Of U.P. Through Sec. Finance And Others Respondent :- Surendra Pal Singh And Others Counsel for Petitioner :- C.S.C. Counsel for Respondent :- Y.Swaroop,P.N. Singh Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
C.M. Application No. 142143 of 2018 (Application for Condonation of Delay) and C.M. Application No. 142145 of 2018 (Application for Review).
Heard learned counsel for the petitioners and the learned counsel for the respondents.
The application for review in question has been moved by the review petitioners-State seeking review of the judgment and order dated 15.12.2010, passed by the Division Bench of this Court in the Writ Petition No. 7778 (S/B) of 1991 (State Of U.P. and others v. Surendra Pal Singh and others).
Brief facts of the present case, which are necessary for disposal of the application for review, are to the effect that initially the claimant-respondent/ Surendra Pal Singh filed a Claim Petition No. 9/F/IV/1982 (Surendra Pal Singh v. State Of U.P. and others), under Section 4 of the U.P. Public Services (Tribunals) Act, 1976, before the U.P. State Public Services Tribunal (in short 'Tribunal'), against the termination order dated 22.11.1981.
The facts pleaded by the claimant-respondent/ Surendra Pal Singh before the Tribunal are to the effect that he was appointed as a Clerk in the Audit Department by order dated 02.02.1981. The claimant-respondent appointment was on regular and temporary basis. Thereafter, by subsequent order dated 17.09.1981, the claimant-respondent's initial appointment was modified and was converted into adhoc appointment. Thereafter, the claimant-respondent's services were terminated by the impugned order dated 22.11.1981. It is alleged that the claimant-respondent had filed a representation against the order dated 02.02.1981 but without passing any order on that representation, the services of the petitioner were terminated without any reason or rhyme, and as such, the impugned termination order is against the principles of natural justice and fair play and it should be struck down.
Vide order dated 03.08.1990, the Tribunal allowed the claim petition filed by the claimant-respondent. The operative portion of the order dated 03.08.1990 reads as under:-
"The claim petition is allowed and the impugned termination order contained in Annexure No.5 is hereby quashed. The petitioner shall be deemed in continuous service as if his services have never terminated.
In the circumstances of the case there is no order as to costs."
The order dated 03.08.1990, passed in Claim Petition No. 9/F/IV/1982 (Surendra Pal Singh v. State Of U.P. and others) has been challenged by the review petitioner by means of the present Writ Petition No. 7778 (S/B) of 1991 (State Of U.P. and others v. Surendra Pal Singh and others), which was dismissed by means of the judgment and order dated 15.12.2010. The operative portion of the judgment and order dated 15.12.2010 reads as under:-
"Needless to mention that before passing any termination order, a notice is required as per the doctrine of AUDI ALTERM PARTEM. In the instant case, no charge was levelled against the opposite-party and his services were terminated without any rhyme and reason. Hence, we find no infirmity in the impugned order passed by the Tribunal which has rightly allowed the opposite-party to continue in service by setting aside the termination order. For the purpose, the interim order, if any, granted by this Court is discharged. The Tribunal's order is hereby sustained along with the reasons mentioned therein.
In the result, the writ petition is dismissed being devoid of merits."
Thereafter, the application for review in question supported by an affidavit has been moved by the review petitioner seeking review of the judgment and order dated 15.12.2010, passed by the Division Bench of this Court in the Writ Petition No. 7778 (S/B) of 1991 (State Of U.P. and others v. Surendra Pal Singh and others).
The review application, in issue, has been filed along with the application for condonation of delay supported by an affidavit. The relevant paras of the affidavit filed in support of the application for condonation of delay on reproduction reads as under:-
"4. That the certified copy of order dated 15.12.2010 was served by the petition in the department on 26.05.2012.
5. That petitioner for compliance of order dated 03.08.1990 passed by the Learned Tribunal in Claim Petition No. 9/F/IV/1982, filed a Contempt Petition before Learned Tribunal in which Learned Tribunal passed an order on 29.01.2014 whereby direction was issued for payment of salary of the petitioner pertaining to the period from 22.12.1981 to 22.06.2012 within a period of four weeks.
6. That against the aforesaid order dated 29.01.2014 State Government file a Writ Petition No. 783 (S/B) of 2014 which was decided vide order dated 15.07.2014 whereby Learned Tribunal was directed to consider all the issues raised by the respondents before the Learned Tribunal.
7. That Learned Tribunal in the aforementioned Contempt Petition passed a very detailed order on 07.04.2017 wherein finding was recorded that petitioner is entitled for salary of the period from 22.12.1981 to 22.06.2012 and personal appearance of the officer was directed.
8. That against the aforesaid order dated 07.04.2017 passed by the Learned Tribunal State Government again filed a Writ Petition No. 8889 (S/B) of 2018 before this Hon'ble High Court. The said Writ Petition has been dismissed by the Hon'ble High Court vide order dated 11.04.2018.
9. That thereafter Learned Tribunal has again passed an order in the aforementioned Contempt Petition on 19.04.2018 whereby direction has been issued for filing of the fresh compliance report.
10. That one complaint under IGRS (Integrated Grievance Redressal System) was filed on which State Government vide letter dated 21.08.2018 directed the department to do needful in the matter.
11. That through aforesaid complaint it transpired that there are factual errors apparent on the face of order dated 15.12.2010 passed in Writ Petition No. 7778 (S/B) of 1991.
12. That in view of the factual errors in the order dated 15.12.2010 State Government took a decision for filing of the Review Application against the order dated 15.12.2010.
13. That the Additional Legal Remembrance Government of U.P. vide Government Order dated 13.08.2018 granted permission for filing of the Review Application against the order dated 15.12.2010.
14. That pursuant to aforementioned permission the State Government vide letter dated 21.08.2018 directed the Chief Audit Officer for preparation of filing of the Review Application.
15. That the Chief Audit Officer wrote a letter on 23.08.2018 whereby request was made to Learned Chief Standing Counsel High Court Lucknow Bench Lucknow for preparation and filing of the Review Application.
16. That Learned Chief Standing Counsel on 24.09.2018 allotted the matter to Additional Chief Standing Counsel for preparation and filing of the Review Application.
17. That the departmental parokar of department contacted to Additional Chief Standing Counsel on 10.10.2018 and the matter was discussed in detail. The Additional Chief Standing Counsel directed the authorities to provide the explanation for delay in preparation and filing the Review Application.
18. That the explanation of delay was provided by the department to Additional Chief Standing Counsel on 15.11.2018.
19. That thereafter again matter was discussed with the concerned officer on 28.11.2018."
For considering the application for review of the judgment dated 15.12.2010 on merits filed on 14.12.2018 after lapse of 2785 days (as per the report of Registry of this Court), we have to condone the delay and accordingly, we are first considering the application for condoning the delay supported by an affidavit in the light of the averments made therein and the material available on record.
In the affidavit filed in support of the review application, the petitioners-State in para-4 have stated that the certified copy of the order dated 15.12.2010, under review, was served by the claimant-respondent in the Department on 26.05.2012.
It has also been stated that for compliance of the dated 03.08.1990, passed by the Tribunal in Claim Petition No. 9/F/IV/1982 (Surendra Pal Singh v. State Of U.P. and others), the claimant-respondent filed a contempt petition, wherein a detailed order was passed on 07.04.2017. Against the order dated 07.04.2017, the petitioners-State filed a Writ Petition No. 8889 (S/B) of 2018 before this Court, as appears from the averments made in para-5 of the affidavit, which was dismissed vide order dated 11.04.2018, which is quoted below:-
"Heard learned Standing Counsel and counsel for the opposite party.
This petition arises out of contempt proceeding initiated against the petitioner for compliance of the judgment and order dated 3.8.1990. The claim filed by the opposite party No.1 was decided by the Tribunal and the Tribunal proceeded and passed the following order:-
"The claim petition is allowed and the impugned termination order contained in annexure No. 5 is here by quashed. The petitioner shall be deemed in continuous service as if his services never terminated.
In the circumstances of the case there is no order as to costs."
The aforesaid order indicates that opposite party No.1 was directed to be treated in continuous service as if termination order has not been passed. The only argument which has been raised by the learned Standing Counsel is that since no order of consequential benefits has been passed, therefore, the salary can not be paid but we have to see as to whether what would be the consequence of the order which has been passed in favour of the opposite party No.1. Once the Tribunal has said that the opposite party No.1 shall be deemed in continuous service as if his services were never terminated, this itself goes to indicate that the continuance of the petitioner on the post in question can not be doubted.
In the aforesaid circumstances, the argument of the learned Standing Counsel has no merit and the writ petition is accordingly dismissed."
After the dismissal of the writ petition, the petitioners-State took a decision for filing review petition and thereafter, the Legal Remembrance of the Government of U.P. vide Government order dated 13.08.2018 granted permission for filing review petition, as appears from para- 12 and 13 of the affidavit. After the permission granted by the Legal Remembrance of the Government of U.P. vide Government order dated 13.08.2018, the review application along with the application for condonation of delay was filed in the Registry of this Court on 14.12.2018. As per the Office Report of the Registry, available on record, the delay in filing the review petition is of 2785 days (7 yeas, 11 months).
Casual approach of the State in approaching this Court against the judgment dated 15.12.2010 reflects from the contents of the affidavit filed in support of the application for condonation of delay. It is in view of the admitted fact that the judgment dated 15.12.2010 was duly served on 26.05.2012 (as stated in para 4 of the affidavit) and since then till 13.08.2018, (the date on which the permission to file the application for review was granted), the State took no step in regard to the judgment dated 15.12.2010. The State was not vigilant. The decision to challenge the judgment dated 15.12.2010 was not taken by the State within the reasonable time from the date i.e. 26.05.2012, the date on which the copy of the judgment dated 15.12.2010 was served in the Department.
From the contents of the affidavit filed in support of the application for condonation of delay, we find that the delay has not been explained properly nor sufficient reasons have been given for condoning the huge delay of 2785 days (7 yeas, 11 months) in filing the review application before this Court.
In the case of Postmaster General and others v. Living Media India Limited and another reported in (2012) 3 SCC 563, after considering the earlier judgments on the issue of condonation of delay, the Apex Court declined to condone the delay in filing the Special Leave Petition and dismissed the appeal. The relevant observations made by the Apex Court on reproduction reads as under:-
"26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person-in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.
27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the 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.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, 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.
31. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case."
In the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nefar Academy and others reported in (2013) 12 SCC 649, the issue before the Apex Court was that whether the High Court rightly condoned the delay of 2449 days in challenging the interim order dated 25.02.2004, which was duly communicated to the authorities and even for compliance of the same, the District Inspector of Schools, Howrah on 24.01.2006, directed the school authorities to comply with the directions issued vide order dated 25.02.2004. The Apex Court after considering the earlier judgments allowed the appeal and set aside the order of the High Court, condoning the delay. In the case of Esha Bhattacharjee (supra), the Apex Court in para 21 of the judgment culled out the principles on the issue of condoning the delay, which reads as under:-
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."
In the case of Brijesh Kumar and others v. State of Haryana and others reported in (2014) 11 SCC 351, the Special Leave Petition was filed against the order, whereby the High Court of Punjab and Haryana dismissed the application for condonation of delay for condoning the delay of 10 years and the Apex Court after considering the judgments on the issue of condoning the delay dismissed the appeal. The relevant paras on reproduction reads as under:-
"6. The issues of limitation, delay and laches as well as condonation of such delay are being examined and explained everyday by the courts. The law of limitation is enshrined in the legal maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
7. The Privy Council in General Accident Fire and Life Assurance Corpn. Ltd. v. Janmahomed Abdul Rahim [(1939-40) 67 IA 416 : (1941) 53 LW 212 : AIR 1941 PC 6] , relied upon the writings of Mr Mitra in Tagore Law Lectures, 1932 wherein it has been said that: (IA p. 426) A law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by law.
8. In P.K. Ramachandran v. State of Kerala [(1997) 7 SCC 556 : AIR 1998 SC 2276] , the Apex Court while considering a case of condonation of delay of 565 days, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had been given, held as under: (SCC p. 558, para 6) "6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds."
9. While considering a similar issue, this Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649 : (2014) 1 SCC (Civ) 713 : (2014) 4 SCC (Cri) 450] laid down various principles inter alia: (SCC pp. 658-59, paras 21-22) *** "21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
*** 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
*** 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach.
*** 22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
(See also Basawaraj v. Land Acquisition Officer [(2013) 14 SCC 81] .)
10. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone."
Recently, the Apex Court in the case of State of Bihar and others v. Deo Kumar Singh and others; 2019 SCC OnLine SC 1314, declined to condone the delay and after observing as under, dismissed the appeal filed by the State of Bihar.
"1. The petitioner-State of Bihar filed an appeal against the order of the learned Single Judge before the Division Bench after a delay of 367 days. The Division Bench dismissed the application for condonation of delay on the ground that there was no sufficient cause shown for condonation of delay. It is thereafter with a delay of 728 days that the special leave petition has been filed. The reason given for seeking condonation of this extraordinary 728 days delay is as under:
"2. that the petitioner State is filing the present special leave petition after obtaining all the sanctions from the respective departments and took time to receive the affidavit and vakalatnama from the concerned department, hence there is delay in filing the present matter."
2. We are of the view that a clear signal has to sent to the Government Authorities that they cannot approach the Court as and when they please, on account of gross incompetence of their officers and that too without taking any action against the concerned officers. No detail of this delay of 728 days have been given as if there is an inherent right to seek condonation of delay by State Government. The law of limitation apparently does not apply to the State Government according to its conduct.
3. That such condonation of delay is no more admissible on the pretext of Government working lethargy is clear from the judgment of this court in The Chief Post Master General v. Living Media India Ltd. [(2012) 3 SCC 563].
4. We strongly deprecate the casual manner in which the Division Bench was approached and also this Court has been approached; the objective possibly being to get a certificate of dismissal from this Court. This is complete wastage of judicial time and the petitioners must pay for the same.
5. We, thus, dismiss the special leave petition on delay and impost cost on the petitioners of Rs. 20,000/-to be recovered from the officers responsible for this delay and be deposited with the Supreme Court Mediation Centre, within four weeks. Certificate of recovery be filed in this court.
6. We also direct the Chief Secretary of the State of Bihar to look into this matter to ensure better management of the legal cases.
7. Consequently, the special leave petition is dismissed in the aforesaid terms.
8. List before the Registrar, on reopening, to verify the certificate of recovery."
In another recent judgment dated 02.09.2019, passed in Special Leave Petition (Criminal) Diary No(s). 29657 of 2019 (State of Odisha v. Purna Chandra Kandi), the Apex Court declined to condone the delay as the delay was not satisfactorily explained and dismissed the appeal. The order dated 02.09.2019 reads as under:-
"We do not find that the delay is satisfactorily explained in terms of the judgment of this Court in the case of Post Master General & Ors. v. Living Media India Ltd. & Anr. reported in (2012) 3 SCC 563. A mere government inefficiency cannot be a ground for condoning the delay. It is for the petitioner to put its own house in order.
The special leave petition is dismissed on the ground of limitation.
Pending application, if any, shall also stand disposed of."
After considering the facts of the case in the light of principles settled by the Apex Court, in the judgments referred hereinabove, on the issue of condonation of delay, we are of view that the application for condonation of delay is liable to be rejected. Accordingly, the application for condonation of delay is hereby rejected. Consequently, the application for review is also dismissed without going into the merits of the same.
Order Date :- 22.10.2019 Arun/-