Gujarat High Court
Maltiben Arvindbhai Raithatha vs Bhartiya Vidya Bhavan on 24 January, 2023
NEUTRAL CITATION
C/SCA/627/2018 JUDGMENT DATED: 24/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 627 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MALTIBEN ARVINDBHAI RAITHATHA
Versus
BHARTIYA VIDYA BHAVAN & 3 other(s)
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Appearance:
MR.SUBHASH G BAROT(2619) for the Petitioner(s) No. 1
MR BAIJU JOSHI(1207) for the Respondent(s) No. 1,2
MR AR THACKER(888) for the Respondent(s) No. 3
MS BALA R THACKER(2867) for the Respondent(s) No. 3
MS NIMISHA A THACKER(890) for the Respondent(s) No. 3
SHIVANG A THACKER(7424) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 4
MS TEJAL B. RAJPUT AGP for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 24/01/2023
ORAL JUDGMENT
Rule returnable forthwith. Mr. Baiju Joshi, learned advocate, waives service of rule for the respondent Nos.1 and 2, Page 1 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023 NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined Mr.Amit V. Ghorpade, learned advocate, for Mr. A.R.Thacker, learned advocate, waives service of rule for the respondent No.3 and Ms. Tejal Rajput, learned AGP, waives service of rule of the respondent No.4.
2. The present Special Civil Application impugns the judgment and order dated 7.9.2017 passed by the Gujarat Educational Services Tribunal, Ahmedabad whereby the Misc. Application No.99 of 2015 preferred by the petitioner for condonation of delay in filing of restoration of application after a period of more than 4½ years is rejected and the restoration application No.7 of 2015 is dismissed on the ground of delay.
3. The factual matrix leading to the filing of the present Special Civil Application is as follows:-
3.1 The petitioner was serving as a Computer Programmer in Commerce faculty of Shri A.K.Doshi Mahila College, Jamnagar since 1.8.2001 as a full time employee. It is further her case that she was being paid consolidated salary during her period of service. That the respondent No.1 Management issued show-
cause notice dated 18.12.2004 to the petitioner for remaining Page 2 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023 NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined absent and further another notice dated 1.2.2005 came to be issued stating that the petitioner was on leave and not performing her duties. It is further the case of the petitioner that she replied to the said show-cause notices stating that she is going on leave as per the Rules and the College Management has to make alternative arrangement for the said period. It is further her case that the College Management without following due procedure, by letter dated 21.4.2005 terminated the services of the petitioner after payment of 3 months notice pay. 3.2 Aggrieved, the petitioner preferred Application No.67 of 2006 before the Gujarat Affiliated College Services Tribunal, Ahmedabad praying for the relief of reinstatement with all due back wages and to give her salary as per the pay scale prescribed by the State Government and Saurashtra University. 3.3 The said application came to be dismissed for default on 14.3.2011 due to absence of the petitioner and her advocate on various dates.
3.4 That by application dated 29.9.2015, the petitioner filed an application for condonation of delay as well as for restoration of the application which was dismissed for default. Page 3 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023
NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined 3.5 By the impugned judgment and order, the learned Tribunal after hearing the parties and also considering the merits of the case, dismissed the application for condonation of delay for a period of 4½ years. Accordingly, the application for restoration of the application was also dismissed on the ground of delay.
Aggrieved, the petitioner has preferred the present Special Civil Application.
4. Mr. Subhash G. Barot, learned advocate appearing for the petitioner, submitted that the petitioner was not aware about the order of dismissal by default dated 14.3.2011 passed by the learned Tribunal. It is further submitted that the advocate who was appearing for the petitioner was not in contact with her and therefore, there was no occasion for her to know about the dismissal of her application for default. He further submitted that the application was filed by the advocate showing that the address of the petitioner was where she was working with the respondent college and therefore also, the order of dismissal was not communicated to her since it was not her residential address. He, therefore, submits that the learned Tribunal ought to have considered the fact that the delay as has occasioned was Page 4 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023 NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined genuine and that the application of the petitioner ought to have been decided on merits. He submits that the petitioner be granted an opportunity to be heard on merits of the case and therefore, the present Special Civil Application be allowed.
5. Per contra, Mr. Baiju Joshi, learned advocate appearing for the respondent Nos.1 and 2, submits that the petitioner was not interested in working with the respondent Nos.1 and 2. He submits that the petitioner has got married after she joined the services of the respondent Nos.1 and 2. He submits that she used to regularly remain absent from her duties. He submits that there was also reduction in number of students in the subject which she was teaching and thereafter, there was no student for the course and therefore, the petitioner along with two other employees was relieved from the service. Before relieving them, the respondent Nos.1 and 2 have given them 3 months notice pay and due procedure has been followed. He further submitted that the petitioner has also suppressed material fact with respect to filing of Application No.16 of 2005 praying for restraining the answering respondents from terminating her services. However, the said application also came to be dismissed for default long back and no restoration Page 5 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023 NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined application was filed by the petitioner. He further submits that thereafter, the petitioner had preferred the present application No.67 of 2006 for reinstatement and back wages. He further submits that the petitioner is in habit of filing applications and remaining absent or being negligent in its prosecution. He submits that despite repeated notices being issued by the learned Tribunal and umpteen number of opportunities being given to her, she had remained absence on all those occasions along with her advocate. The details of which are given in para-5 of the affidavit-in-reply. He submits that on 30 occasions, neither the petitioner nor her advocate has remained present. He, therefore, submits that the learned Tribunal has rightly come to the conclusion that in addition to suppression of fact, the petitioner is not diligent in prosecuting her application and therefore also, the application for condonation of delay has been rightly dismissed. He, therefore, submits that the present Special Civil Application may not be entertained and be dismissed.
6. Mr. Amit V. Ghorpade, learned advocate, for Mr. A.R.Thacker, learned advocate for the respondent No.3 - Saurashtra University, submitted that the appointment of the petitioner was not approved by the respondent No.3 - University. Page 6 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023
NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined He, therefore, submits that the respondent No.3 - University has no role in respect of the termination of the petitioner.
7. Heard learned advocates for the parties and perused the documents on record.
8. It is an admitted position that the petitioner has preferred application No.16 of 2005 against the respondent Nos.1 and 2 before the Gujarat Affiliated College Services Tribunal, Ahmedabad praying that the said respondent Nos.1 and 2 be restrained from terminating her services on the basis of the said two show-cause notices issued to her. In the same set of facts and circumstances, it is further not denied that the said application also came to be dismissed for default for which no restoration application was filed. That after the removal of the petitioner from her services, she has filed application No.67 of 2006 before the learned Tribunal praying that she be reinstated in service along with all due back wages.
9. Mr. Baiju Joshi, learned advocate for the respondent Nos.1 and 2, submitted that the prayer (B) in the earlier application No.16 of 2005 as well as in application No.67 of 2006 are the Page 7 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023 NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined same with respect to grant of pay scale. It is not controverted that the petitioner and her advocate sought adjournments on various dates and the matter came to be adjourned for 30 times till the passing of the final order dismissing it for default. It is also recorded by the learned Tribunal that the advocate for the petitioner was seeking adjournment time and again till the date of final hearing, i.e. on 14.3.2011. When the impugned order came to be passed, on that date also, the advocate was not present neither the petitioner remained present. The application, therefore, came to be dismissed for default. In the application for condonation of delay in filing of restoration application, the petitioner has taken a stand that she was not aware of the proceedings since her advocate was not in contact with her. The second ground which she has urged is that the address which was given in the application was of the college where she was working and therefore also, she was not aware in respect of the issuance of notice. It is her case that she wanted a copy of the proceedings and therefore she had engaged another advocate who made an application for certified copy on 14.12.2014 and on that day, she came to know that her application No.67 of 2005 had been dismissed for default. Both these contentions have been properly dealt with by the learned Tribunal giving cogent Page 8 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023 NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined reasons based on facts while rejecting the same.
10. In the present case, the application for restoration is also filed on 29.9.2015 i.e. after around 9 months after getting the knowledge with respect to dismissal of the application. No explanation is also forthcoming for the said delay. The learned Tribunal has considered all the arguments and thereafter come to a finding that the delay is not to be condoned also due to laches on the part of the petitioner.
11. The limitation has got a specific purpose and object and more specifically to avoid prejudice to the respective parties. Section 5 of the Limitation Act provides 'sufficient cause' is the only criterion for condoning delay. 'Sufficient Cause' is the cause for which a party could not be blamed.
12. The law is well settled that delay cannot be condoned as a matter of 'judicial generosity' in any special case. An order extending time should give sufficient indication that the discretion given by the law has been judicially exercised. An Appellate Court will not ordinarily interfere with the discretion exercised by the Court below. But the deciding factor is whether Page 9 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023 NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined the exercise of discretionary power is just and proper.
13. It is true that each day's delay need not to be explained but it is enjoined on the petitioner to make out sufficient cause for not filing the application within the period of limitation. Uncondonable delay cannot be condoned in the absence of any valid reason. Unless proper explanation is offered, the Court cannot exercise its discretion in the proper perspective to advance substantial justice. It is also well settled that when a court has exercised its discretionary power to condone the delay, the appellate Court, in exercise of its discretion, should not ordinarily interfere with such decision unless the discretion exercised is arbitrary and overlooking the interest accrued to another party to the dispute.
14. At the same time, the discretion must not be exercised in any arbitrary or vague or fanciful manner, but must be exercised like any other judicial discretion with vigilance and circumspection. Where delay could have been avoided by due care and caution, the Court may not exercise the discretion to condone the delay.
Page 10 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023
NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined
15. It is true that "sufficient cause" should receive liberal construction to do substantial justice. What is "sufficient cause"
is a question of fact in the given circumstances of the case. It is true that condonation of delay is discretion of the Court. Length of delay is no matter, but acceptability of the explanation is the only criterion. Thus, the Courts have taken a clear view that the intention of the parties in filing appeal belatedly after causing prejudice to the interest of the other parties, then also the delay cannot be condoned by exercising the power of discretion. Therefore all these aspects have to be considered.
16. In the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Others reported in MANU/SC/0932/2013, the Hon'ble Supreme Court of India made an observation as follows:
"15. From the aforesaid authorities the principles that can broadly be culled out are:
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
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.
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into Page 11 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023 NEUTRAL CITATION C/SCA/627/2018 JUDGMENT DATED: 24/01/2023 undefined 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.
17. In this background while considering condonation of delay, the routine explanation may not be enough but it has to be in the nature of indicating "sufficient cause" to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Court based on the fact situation.
In the case of inordinate delay a strict approach is warranted because "delay defeats equity". In the present facts and circumstances, sufficient cause for delay is not borne out.
This Court has no doubt in its mind that there is willful latches and negligence on the part of the petitioner in defending her right. No error can be found in the impugned judgment and order. No interference is called for.
The present Special Civil Application is devoid of merits and is, accordingly, dismissed. Rule is discharged. No order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN Page 12 of 12 Downloaded on : Sun Sep 17 21:07:36 IST 2023