Karnataka High Court
The Malaprabha vs The Director Of Sugar And Ex-Officio on 20 June, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 112254 of 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 112254 OF 2017 (CS-RES)
C/W
WRIT PETITION NO. 112253 OF 2017 (CS-RES)
IN W.P.NO.112254 OF 2017:
BETWEEN:
THE MALAPRABHA SAHAKARI,
SAKKERE KHARKHANE NIYAMIT,
M.K. HUBLI, BELAGAVI,
REP. BY ITS MANAGING DIRECTOR,
VISHWANATH C. HIREMATH.
... PETITIONER
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI I.S.UPPIN AND SRI SRINIVAS B. NAIK, ADVOCATES)
AND:
1. THE DIRECTOR OF SUGAR AND EX-OFFICIO,
JOINT REGISTRAR OF CO-OP. SOCIETIES,
Digitally
signed by
5TH FLOOR, KAVERI BHAVAN, BENGALURU.
BHARATHI H
M
Location:
HIGH COURT
BHARATHI
HM
OF
KARNATAKA
DHARWAD
2. SRI SUHELMED ABDUL JAFFAR JAFFAR HAWALDAR
BENCH
Date:
2024.07.06
S/O ABDUL JAFFAR HAWALDAR,
12:19:32
+0530
AGED 55 YEARS,
R/O: SANKESHWAR, HUKKERI TALUK,
BELAGAVI DISTRICT.
3. SHRI MALLAPPA C. MODAGI
S/O CHAMBAPPA MODAGI,
AGED ABOUT 48 YEARS,
R/O: BAILHONGAL, BELAGAVI DISTRICT.
4. BASAVARAJ B. TAMBAKAL
S/O BASAVANAPPA TAMBAKAL,
AGED 58 YEARS,
R/O: BAILHONGAL, BELAGAVI DISTRICT.
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5. BALAPPA S. NERALIKATTI
S/O SADANAND NERALIKATTI,
AGED 45 YEARS,
R/O: KADOLLI VILLAGE,
BAILHONGAL, BELAGAVI DISTRICT.
6. SHIVAPPA SIDDAPPA MADIWALAR,
SINCE DECEASED BY HIS LR'S.
6A. SMT. GOURAMMA S. MADIWAL,
W/O LATE SHIVAPPA MADIWAL,
AGED ABOUT 41 YEARS,
R/O: M.K. HUBLI,
TQ: BAILHONGAL, DIST: BELAGAVI.
7. BASAVARAJ B. BASSAPPUR
S/O BASAPPA BASSAPPUR,
AGED ABOUT 58 YEARS,
R/O: M.K. HUBLI,
TQ: BAILHONGAL, DIST: BELAGAVI.
8. BASAVARAJ S. MUGBASAN
S/O SHIVALINGAPPA MUGBASAN,
AGED 59 YEARS,
R/O: M.K, HUBLI,
TQ: BAILHONGAL, DIST: BELAGAVI.
9. CHANDRASHEKHAR B. PATTANSHETTY
S/O BASAVANNAGOUDA PATTANSHETTY,
AGED ABOUT 48 YEARS,
R/O: M.K. HUBLI,
TQ: BAILHONGAL, DIST: BELAGAVI.
10. CHADRASHEKHAR R. JIDDIMANI,
SINCE DECEASED BY HIS LR'S.
10A. MALLAWWA
W/O LATE CHANDRASHEKHAR JIDDIMANI,
AGE: 40 YEARS, OCC: HOUSEWIFE,
10B. POOJA
D/O. LATE CHANDRASHEKHAR JIDDIMANI,
AGE: 19 YEARS, OCC: NIL,
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10C. PUSHPA
D/O LATE CHARASHEKHAR JIDDIMANI,
AGE: 11 YEARS, OCC: NIL,
10D. TAYAWWA
W/O RAJASHEKHAR JIDDIMANI,
AGE: 65 YEARS, OCC: HOUSEWIFE,
ALL ARE R/O: BAILHONGAL,
BAILHONGAL TALUK,
BELAGAVI DISTRICT.
11. BABU B. ULARIS
S/O BASAVANNAPPA ULARIS,
AGE ABOUT 55 YEARS,
R/O: MUMKIBHERI VILLAGE,
TQ: BAILHONGAL, DIST: BELAGAVI.
... RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
SRI S.L.MATTI, ADVOCATE FOR R2-R11, R10(A-D) & R9.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO:
I) ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE
OF CERTIORARI QUASHING THE ORDER DATED 07.09.2017 IN
APPEAL NO.35/2014 PASSED BY THE KARNATAKA APPELLATE
TRIBUNAL, BENGALURU, AT ANNEXURE-A.
II) ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE
OF MANDAMUS DIRECTING THE 1ST RESPONDENT TO CONSIDER THE
CASE ON MERITS AND ETC.,.
IN W.P.NO.112253 OF 2017:
BETWEEN:
THE MALAPRABHA SAHAKARI
SAKKARE KHARKHANE NIYAMIT,
M.K. HUBLI, BELAGAVI,
REP. BY ITS MANAGING DIRECTOR,
VISHWANATH C. HIREMATH.
...PETITIONER
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI I.S.UPPIN, ADVOCATE.)
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AND:
1. THE STATE OF KARNATAKA,
CO-OPERATIVE SECTION,
M.S. BUILDING, 2ND FLOOR,
BENGALURU-01,
BY ITS SECRETARY.
2. THE DIRECTOR OF SUGAR AND EX-OFFICIO,
JOINT REGISTRAR OF CO-OP. SOCIETIES,
5TH FLOOR, KAVERI BHAVAN, BENGALURU.
3. K.S. CHOUGLA S/O S. CHOUGLA,
AGED ABOUT 59 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR, BELAGAVI DISTRICT.
4. SHRI. K.B. SANNADI
S/O B. SANNADI,
AGED ABOUT 42 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR, BELAGAVI DISTRICT.
5. M.B. BELGUNDIKAR
S/O B. BELGUNDIKAR,
AGED 58 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR, BELAGAVI DISTRICT.
6. B.B. BELGUNDIKAR
S/O B. BELGUNDIKAR,
AGED 60 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR, BELAGAVI DISTRICT.
7. SRI. B.K. SANADI
SINCE DECEASED BY LRS,
SMT. B. SANADI
W/O CHANNAMMA B. SANADI,
AGED ABOUT 48 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR,
BELAGAVI DISTRICT.
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8. SHRI. V.D. VASTRAD
SINCE DECEASED BY LR'S.
8A. SMT. SHANTAWWA W/O BABU VASTRAD,
AGE: 50 YEARS, OCC. HOUSEWIFE,
8B. NAGAYYA S/O BABU VASTRAD,
AGE: 35 YEARS, OCC: AGRICULTURE,
8C. SMT. GANGAMMA HIREMATH
W/O SHAMBULINGA HIREMATH,
AGE: 33 YEARS, OCC: HOUSEWIFE,
8D. DUNDAMMA KAMBI
W/O SOMAYYA KAMBI,
AGE: 30 YEARS, OCC: HOUSEWIFE,
ALL ARE R/O HIREMANAVALLI VILLAGE,
TALUKA KHANAPUR, DIRSTICT: BELAGAVI.
9. SHRI. S.V. KUMBAR,
SINCE DECEASED BY LR'S,
SMT. ANNAPURNA S. KUMBAR,
AGED ABOUT 45 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR,
BELAGAVI DISTRICT.
10. SHRI. M.R. CHOUGULA
S/O R. CHOUGULA,
AGED ABOUT 60 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR, BELAGAVI DISTRICT.
11. SRI. P.B. PUJAR S/O B. PUJAR,
AGED ABOUT 59 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR, BELAGAVI DISTRICT.
12. SRI. L.R. SANADI S/O R. SANADI,
AGED ABOUT 58 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR, BELAGAVI DISTRICT.
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13. SRI. R.A. PUJAR S/O A.PUJAR
AGED ABOUT 57 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR, BELAGAVI DISTRICT.
14. SHRI. M.F. BASTWAD
S/O F. BASTWAD,
AGED ABOUT 59 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR, BELAGAVI DISTRICT.
15. SHRI. M.S. GIREPPAGOUDA
S/O S. GIREPPAGOUDA,
AGED ABOUT 60 YEARS,
R/O: HIREMANAVALLI,
TQ: KHANAPUR, BELAGAVI DISTRICT.
16. SHRI. M.S. GONE S/O S. GONE,
AGED ABOUT 58 YEARS,
R/O: DASTIKOPPA,
TQ: BAILHONGAL, DIST: BELAGAVI.
17. SRI. K.S. SHEKHAPPANNAVAR
S/O S. SHEKHAPPANNAVAR,
AGED ABOUT 59 YEARS,
R/O: M.K. HUBLI,
TQ: BAILHONGAL, DIST: BELAGAVI.
18. SRI. G.G. RANGANNAVAR
S/O B. RANGANNAVAR,
AGED ABOUT 57 YEARS,
R/O: DASTIKOPPA,
TQ: BAILHONGAL, DIST: BELAGAVI.
19. SRI. G.T. JADIGER S/O T. JADIGER,
AGED ABOUT 60 YEARS,
R/O: DASTIKOPPA,
TQ: BAILHONGAL, DIST: BELAGAVI.
20. SHRI S.V. RAWAL S/O V. RAWAL,
AGED ABOUT 60 YEARS,
R/O: DASTIKOPPA,
TQ: BAILHONGAL, DIST: BELAGAVI.
21. SHRI. G.C. JOGER S/O C. JOGER,
AGED ABOUT 57 YEARS,
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R/O: DASTIKOPPA,
TQ: BAILHONGAL, DIST: BELAGAVI.
22. SHRI. B.I. BGEWADI S/O I. BAGEWADI,
AGED ABOUT 60 YEARS,
R/O: CHIKAMANAVALLI,
TQ: BAILHONGAL, DIST: BELAGAVI.
... RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1 & R2;
SRI S.L.MATTI, ADVOCATE FOR R4, R6, R7 & R9-R22, R8(A-D);
R5-NOTICE SERVED;
R3-DECEASED.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO:
I) ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE
OF CERTIORARI QUASHING THE ORDER DATED 07.09.2017 IN
APPEAL NO.34/2014 PASSED BY THE 1ST RESPONDENT AT
ANNEXURE-A.
II) ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE
OF MANDAMUS DIRECTING THE 1ST RESPONDENT TO CONSIDER THE
CASE ON MERITS AND ETC.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard the learned Senior Counsel Sri Jayakumar S. Patil, on behalf of Sri I.S.Uppin and Sri Srinivas B. Naik, for petitioner, learned counsel Sri S.L.Matti, for respondents/employees of the petitioner sugar factory and learned HCGP for the respondent State. -8-
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2. These petitions are filed by the petitioner seeking to quash the order dated 07.09.2017 in Appeal No.35/2014 and 34/2014, passed by the Karnataka Appellate Tribunal, Bengaluru, vide Annexure-A, respectively, and other suitable directions.
3. The petitioner is a sugar factory registered under the Karnataka Co-operative Societies Act, 1959 ('the Act' for short). The sugar factory engaged in manufacturing of white crystal sugar and it is a seasonal industry. It is the contention of the petitioner that the manufacturing activities are seasonal which takes place only during a particular season and there are no permanent employees in the factory. According to the petitioner, respondents No.2 to 11 in W.P.No.112254/2017 and respondents No.3 to 22 in W.P.No.112253/2017 claim to be the workers in the sugar factory as unskilled mazdoor in the farm at nearby factory site of petitioner and they worked with the petitioner factory as seasonal workers on contract basis in the year 1994-95. The petitioner also contends that the employees are not permanent employees in the petitioner factory. -9-
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4. This being the state of affairs, respondents No.2 to 11 and 3 to 22 respectively, raised dispute before respondent/Director of Sugar and Ex-officio, Joint Registrar of Co-operative Societies, seeking that they are permanent employees of the petitioner factory. Accordingly claim petitions came to be filed which were objected to by the petitioner herein. After hearing the parties, respondent/Joint Registrar allowed the dispute filed by respondents/ employees by holding that they are permanent employees and entitled to reinstatement with 25% back wages, vide Annexure-D.
5. Aggrieved by the said impugned order, petitioner challenged the same before the Karnataka Appellate Tribunal in Appeal Nos.35 and 34 of 2014. While filing the said appeal before the Karnataka Appellate Tribunal, the petitioner had made an application seeking condonation of delay of 259 days in filing the appeal. The Appellate Tribunal while considering the application for delay, without adverting to the merits of the appeal, disposed of the appeal itself by rejecting the appeal on the ground that it is barred by law of
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 limitation and confirmed the order passed in the dispute by the Ex-officio Joint Registrar of Co-operative Societies. It is this order that is questioned by the petitioner before this Court.
6. It is the vehement contention of the learned Senior Counsel Sri Jayakumar S. Patil on behalf of the petitioner that the Appellate Tribunal has passed an illegal order which is arbitrary and void. The same is to be quashed. He further contends that the Appellate Tribunal has not appreciated the application filed by the petitioner for condonation of delay and has dismissed the entire appeal solely on the ground that no effective, cogent, satisfactory reasons have been placed to condone the delay and accordingly dismissed the appeal as being barred by law of limitation.
7. Learned Senior Counsel further contends that when an appeal is filed and an application is preferred to condone the delay under section 5 of the Limitation Act, the Appellate Tribunal or the Courts will have to take a very pragmatic, lenient view rather than taking a hyper technical
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 approach in dismissing the application for condonation of delay, consequently dismissed the appeal without going into the merits of the matter. Therefore, he contends that there was a delay of 259 days, which was explained the causation of delay and during the course of arguments before this Court an additional affidavit came to be filed explaining the reasons for causation of delay which appears more on the ground of lack of communication and co-ordination on the administrative authorities i.e., the Managing Director and the approval for filing appeal being delayed, the same has been explained in the affidavit dated 19.06.2024 filed before this Court. Under the circumstances, learned Senior Counsel contends that the Appellate Tribunal ought to have appreciated the reasons for causation of delay rather than the number of days and ought to have condoned the delay and considered the matter on merits and decided either way. He further contends that the respondents/employees are seasonal employees and they are not regular employees. Therefore, these intricate aspects ought to have been considered by the Court rather than simply dismissing the
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 appeal on the ground of delay, which is not very huge and humungous, so also he contends that there are bona fide reasons stated for causation of delay. Hence he contends that the impugned order passed by the Appellate Tribunal dismissing the appeal on the ground of delay without going into the merits of the matter is bad in law. Accordingly he seeks to set aside the same by allowing these petitions and provide an opportunity to contest the matter on merits.
8. Learned Senior Counsel for the petitioner has relied on the following judgments in support of his case.
i) Executive Officer, Antiyur Town Panchayat vs. G.Arumugam (dead) by legal representatives, reported in (2015) 3 SCC 569.
ii) Collector Land Acquisition, Anantnag and another vs. Mst.Katiji and others, reported in 1987 AIR 1353.
iii) Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others, reported in 2013(12) SCC 649.
9. Per contra, learned counsel Sri S.L.Matti appearing for the respondents/employees vehemently
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 contends that the dispute is of the year 2007-08. The respondents/employees have worked continuously for more than 360 days every year from 1994-1998, as unskilled labourers. It is his further contention that two batch of employees totally 31 employees i.e., 11 employees in one case and 20 employees in the other case initially were employed as casual labourers and later they were appointed as permanent labourers in the vacancies that arose in the petitioner factory. He also contends that the employees continuously worked for more than 365 days in the petitioner factory as permanent employees doing permanent nature of work classified under Order 3(b) read with 3(h) of the Certified Standing Order of Establishment. Despite the continuous employment and work by the workmen, they were terminated from their employment on 15.03.1998 without assigning or providing any cogent reasons or opportunity to explain. Hence, they were forced to raise a dispute before the concerned authorities. The authority allowed the case of the workmen and passed an order of reinstatement by granting 25% of the back wages to the
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 workmen. Despite the order passed by respondent authorities, the petitioner factory did not reinstate the workmen and neither paid the back wages as ordered. They preferred an appeal before the Appellate Tribunal along with an application for condonation of delay of 259 days. The said application was seriously objected to as there was no proper reason much less sufficient or cogent reason assigned nor any satisfactory bona fide reasons for condonation of delay and the Appellate Tribunal after hearing both the parties came to the conclusion that the reasons assigned by the petitioner sugar factory was bald, vague and unbelievable as no proper reasons were forthcoming to appreciate the contentions put forth in the statement made in the affidavit annexed to the application for condoning the delay. On these grounds the appellate tribunal not being satisfied with the reasons assigned and showing very casual manner in drafting the said application for delay and the explanation being bald, did not find favour with the petitioner, accordingly answered the same in the negative and
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 consequently dismissed the appeal on the ground of it being barred by law of limitation.
10. Learned counsel for respondents/employees contends that there is absolutely no illegality perversity or arbitrariness in the order passed by the Appellate Tribunal in dismissing the appeal on the ground of delay. He also contends that when any appeal or proceedings are filed and the application is annexed seeking for condonation of delay, merely for asking the application cannot be allowed. The petitioner/appellant would have to make out a valid, cogent ground or reason which should be satisfactory and show sufficient cause for causation of the delay which should be bona fide, satisfactory to the Court to accept the same which in the present case is not forthcoming and hence the Appellate Tribunal rightfully noting the same as being bald, vague and unsatisfactory, refused to condone the delay and consequently dismissed the appeal on the ground of it barred by law of limitation.
11. Learned counsel further contends that in the application filed before the Appellate Tribunal, the affidavit
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 filed was vague, bald and unsatisfactory without sufficient cause or reasons, so also in the affidavit filed before this Court on 19.06.2024. There are no sufficient reasons forthcoming for causation of delay and no materials are placed with regard to the board meeting was held and resolution was passed on which ground they seek to condone the delay. Therefore, he contends that the petitioner has not come before the Court with clean hands either before the Appellate Authority or before this Court and in a very casual manner filed the application seeking condonation of delay, which has been rightly negatived and dismissed by the Appellate Tribunal, which does not call for interference and the same requires to be appreciated and the petition requires to be dismissed.
12. Learned counsel for respondents/employees Sri S.L.Matti has relied on the following judgments in support of his case.
i) Government of Maharashtra (Water Resources Department) represented by Executive Engineer vs. Borse Brothers
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 Engineers and Contractors Private Limited, reported in (2021) 6 SCC 460.
ii) Majji Sannemma @ Sanyasirao vs. Reddy Sridevi, in Civil Appeal No.7696 of 2021, decided on 16.12.2021.
iii) H.M.Renukaiah vs. Panchaksharaiah, reported in MANU/KA/5589/2021.
iv) Commissioner, Bangalore Development Authority vs. Mruthyunjaya, reported in 2017(2) KCCR 1116.
13. Learned Senior Counsel relies on paragraphs No.2 and 3 in the judgment in the case of Executive Officer, Antiyur Town Panchayat vs. G.Arumugam, reported in (2015)3 SCC 569, which reads as under:
2. It appears, no steps were taken by the Executive Officer of the Panchayat at the relevant time. When the Executive Officer, at the time of filing the second appeal, came to know of the proceedings when steps for eviction were taken in execution, he immediately took steps and filed an application on 26-10-2004 for certified copy of the judgment and decree. The same were issued on 15-12-2004, and after obtaining the necessary sanction and on completing the other procedural formalities, the second appeal was filed on 5-1-
2005 along with application for condonation of delay. By the impugned order, the High Court declined to condone the delay. According to the High Court, the delay is not properly explained. It is also observed in the impugned order that
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 though the certified copies were issued on 15-12- 2004, the second appeal is filed only on 5-1-2005 and that there is no explanation even for that delay.
3. In the additional affidavit filed on behalf of the appellant on 12-12-2006, it is brought to the notice of this Court that Shri K.G. Ramasamy, who was working as Executive Officer of the Panchayat at the relevant time was suspended from service w.e.f. 12-7-2002 on allegations of corruption. Be that as it may, after going through the records and after hearing the counsel on both sides, we are satisfied that the delay occasioned only on account of the deliberate lapses on the part of the Executive Officer of the Panchayat at the relevant time. Who else are involved in the process, is not quite clear.
14. He also relied on paragraph No.2 in the judgment of Collector Land Acquisition, Anantnag and another vs. Mst.Katiji and others, reported in 1987 AIR 1353 SC, which reads as under:
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
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15. He also relies on the judgment in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others, reported in 2013(12) SCC 649.
16. Whereas, learned counsel Sri S.L.Matti, appearing for the respondents/employees relies on several judgments cited hereinabove, more particularly the judgment in the case of Government of Maharashtra (Water Resources Department) represented by Executive Engineer vs. Borse Brothers Engineers and Contractors Private Limited, reported in (2021) 6 SCC 460, on paragraph Nos.62, 67 and 68, which read as under:
62. Also, it must be remembered that merely because sufficient cause has been made out in the facts of a given case, there is no right in the appellant to have delay condoned. This was felicitously put in Ramlal v. Rewa Coalfields Ltd. [Ramlal v. Rewa Coalfields Ltd., (1962) 2 SCR 762 : AIR 1962 SC 361] as follows : (SCR p. 771 : AIR p. 365, para 12) "12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14."
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67. That apart, on the facts of this appeal, there is a long delay of 75 days beyond the period of 60 days provided by the Commercial Courts Act. Despite the fact that a certified copy of the District Court's judgment was obtained by the respondent on 27-4-2019, the appeal was filed only on 9-9-2019, the explanation for delay being:
"2. That, the certified copy of the order dated 1-4-2013 was received by the appellant on 27-4-
2019. Thereafter the matter was placed before the CGM purchase Mppkvvcl for the compliance of the order. The same was then sent to the law officer, Mppkvvcl for opinion.
3. That after taking opinion for appeal, and approval of the authorities concerned, the officer-in- charge was appointed vide order dated 23-7-2019.
4. That, thereafter due to bulky records of the case and for procurement of the necessary documents some delay has been caused however, the appeal has been prepared and filed pursuant to the same and further delay.
5. That due to the aforesaid procedural approval and since the appellant is a public entity formed under the Energy Department of the State Government, the delay caused in filing the appeal is bona fide and which deserve[s] to be condoned."
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68. This explanation falls woefully short of making out any sufficient cause. This appeal is therefore allowed and the condonation of delay is set aside on this score also.
17. So also he relies on three other judgments of the Hon'ble Apex Court vehemently contending that the reason for introducing the law of limitation is on the basis of public policy to restrict the time period for filing the litigations as it acts as a public order. He also contends that it is based on the principle of maxim 'interest reipublicae ut sit finis litium,' that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure justice suppressing fraud and perjury quickening diligence and preventing oppression.
18. It is also vehemently contended by the learned counsel for the respondents/employees that in the present case on hand the petitioner has not come out with clean hands and not stated specifically the grounds for causation of delay and sufficient cause, cogent reasons are not forthcoming to condone the delay to consider the matter on merits and therefore the Appellate Tribunal has rightfully
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 dismissed the appeal on the ground of delay. He sustains the order of the Appellate Tribunal not condoning the delay of the petitioner, which has been not clearly explained and no sufficient cause has been shown to condone the same.
19. I have heard the learned Senior Counsel for the petitioner and the learned counsel for the respondents/employees. In the judgment relied by learned counsel for the respondents in the case of Government of Maharashtra (Water Resources Department) represented by Executive Engineer vs. Borse Brothers Engineers stated supra of the Full Bench, the matter that was dealt with pertains to the Arbitration Act and the Commercial Courts Act, which specifically provides a particular timeline and time limit for filing of the appeal which was considered therein. The present case does not deal with the Arbitration Act or the Commercial Courts Act. Therefore, the facts and circumstances are clearly different in both these cases.
20. In the other cases relied by learned counsel for the respondents, no doubt he is right and it cannot be
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 disputed that the time limits fixed by the law of limitation are founded on public policy and it is always better in the interest of justice and equity to limit the time period as the threat of no limitation creates insecurity and uncertainty. Therefore, a limitation is essential for public order. However the said principle has to be kept in mind by considering each case by its own facts and merits of the matter. The same will have to be considered and exercised judiciously based on the facts and circumstances of each case. In the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others, reported in 2013(12) SCC 649, the Hon'ble Apex Court has held at paragraph No.20, 21 and 22 as under by making out certain principles for dealing with the delay applications. The said judgment has taken into consideration the judgment of Collector Land Acquisition, Anantnag and another vs. Mst.Katiji and others, reported in 1987 AIR 1353 SC and other judgments.
20. In B. Madhuri Goud v. B. Damodar Reddy the Court referring to earlier decisions reversed the decision of the learned Single Judge
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 who had condoned delay of 1236 days as the explanation given in the application for condonation of delay was absolutely fanciful.
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.
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 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.
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
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.
21. It cannot be ruled out that while drafting an application for delay, the aggrieved party in the case/the petitioner ought to have been very careful in making out a
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 valid case for condonation of delay by showing sufficient cause and cogent reasons for condonation of delay. It appears that there has been a very casual manner in drafting the delay application before the Appellate Authority. However, a fresh affidavit has been filed before this Court to show the causation of delay in presenting the appeal before the Appellate Tribunal. It also shows that there are certain cogent bona fide reasons which are forthcoming in the affidavit filed for condoning the delay which was not placed before the Appellate Tribunal.
22. It is a fundamental principle that while considering an application for condonation of delay, unless the delay is very huge and humongous, the same should be dealt with in a pragmatic manner rather than approaching it in a hyper technical way. Sufficient cause, cogent reasons and bona fides will have to be shown by the petitioner. It is also to be kept in mind that there has to be a distinction between inordinate delay and delay of short duration or few days. No doubt when there is huge delay and humongous days of delay caused and when the party is indifferent to the
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 proceedings and acts and sleeps like Kumbhakarna, cannot be granted relief who suddenly rise like a phoenix and move the Court as held in the case of Esha Bhattacharjee (supra) by the Hon'ble Apex Court.
23. Coming back to the present case on hand, no doubt there is a delay of 259 days in filing the appeal. Matter pertains to the employees who are claiming to be permanent employees to be reinstated; despite an order they have not been reinstated and no back wages have been paid. This Court certainly has sympathy towards the workmen who are kept out despite securing an order in their favour of reinstatement and not being paid back wages. However, the Appellate Authority ought to have considered the delay application in a pragmatic manner so that the workmen could have been benefited if the matter would have been decided on merits rather than dismissing it on the ground of delay as being barred by the law of limitation. Under the circumstances, I am of the considered opinion after giving thoughtful consideration to the rival contentions that the Appellate Authority ought to have allowed the application for
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 condonation of delay, taken up the main matter in a time bound manner and disposed of the appeal, rather than the case being agitated once again before the Court for condonation of delay, which again protracts the matter further. Under the circumstances, I pass the following:
ORDER
i) Both the petitions are allowed.
ii) The impugned order dated 07.09.2017, passed by the Karnataka Appellate Tribunal, Bengaluru, in Appeal Nos.35 and 34 of 2014, vide Annexure-A in both the matters are quashed.
iii) The applications filed for condonation of delay are allowed by imposing cost of Rs.10,000/- to each of the workmen to be paid by the petitioner factory within a period of two weeks before the Appellate Tribunal.
iv) In view of the fact that dispute is of the year 2007-08 and the appeals are of the year 2014, the Appellate Tribunal shall dispose of the appeals in an expeditious
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NC: 2024:KHC-D:8376 WP No. 112254 of 2017 C/W WP No. 112253 of 2017 manner within an outer limit of three months from the date of receipt of a copy of this order.
v) The imposition of cost shall be condition precedent for entertainment of the appeals.
vi) Vide order dated 24.06.2022, petitioner has deposited five lakh rupees before this Court on 08.07.2022. Out of the said amount, the cost shall be disbursed and released in favour of the respondents/workmen upon proper identification. The balance amount shall be disbursed in favour of the petitioner.
Sd/-
JUDGE MRK CT:BCK LIST NO.: 1 SL NO.: 1