Allahabad High Court
State Of U.P.Throu.Prin.Secy.Home ... vs Harikesh Singh on 24 February, 2022
Bench: Rajesh Bindal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Chief Justice's Court Serial No. 311 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (Lucknow Bench) *** SPECIAL APPEAL DEFECTIVE No. - 23 of 2019 (In Writ Petition No. 1966 (Writ-A) of 2017) State of U.P. and Others ....Appellants Through:- Sri Q.H. Rizvi, Standing Counsel, Advocate v/s Harikesh Singh ... Respondent Through:- Sri Amit Bose, Senior Advocate assisted by Sri Abhishek Bose and Sankalp Dewari, Advocates. Coram: HON'BLE RAJESH BINDAL, CHIEF JUSTICE HON'BLE JASPREET SINGH, JUDGE ORDER
Rajesh Bindal , Chief Justice.
1. The present intra court appeal has been filed against the order dated February 5, 2018 passed by the learned Single Judge by which the writ petition was allowed.
2. The appeal is accompanied by an application seeking condonation of delay. The period of delay has not been mentioned in the application, however, as calculated by the Registry, the period is 287 days.
3. The learned counsel for the applicant/appellant submitted that after the copy of the order was received, the file had to be dealt with at number of stages before the final decision is taken and the appeal was filed. The Government Machinery being impersonal, the delay has occurred. The case otherwise is quite meritorious and the order passed by the learned Single Judge deserves to be set aside.
4. On the other hand, learned counsel for the respondent no. 1 submitted that there is hardly any explanation given for seeking the condonation of delay. Similar grounds have already been discarded by the Hon'ble Court Supreme Court in the case of Postmaster General and Others Vs. Living Media India Limited and Another, (2012) 3 SCC 563. Hence, condonation of delay on such grounds is not permissible. He also referred to an order passed by the Hon'ble Supreme Court in the case of State of Madhya Pradesh and Others Vs. Bherulal (2020) 10 SCC 654 whereby relying on the aforesaid judgment of the Hon'ble Supreme Court in Postmaster General and other's case (supra), while dismissing the application seeking condonation of delay, even cost was imposed.
5. Heard learned counsel for the parties on the application seeking condonation of delay.
6. In the case in hand, the order passed by the learned Single Judge is dated 05 February, 2018. A period of 30 days has been provided for filing a Special Appeal against the order passed by the learned Single Bench, in case any of the party is aggrieved. Casualness on the part of the applicant/appellant is apparent as even the application for supply of certified copy of the order was filed on 28.04.2018 i.e. after expiry of period of limitation to file appeal and the same was not pursued thereafter as it remained pending till December, 2018.
7. If the facts stated in the affidavit filed in support of the application seeking condonation of delay are considered, in paragraph no. 2 thereof, it is stated that after receipt of the copy of the order dated 05.02.2018, as impugned in the present appeal, the Senior Superintendent of Police, Lucknow vide letter dated 27.02.2018 requested the learned Chief Standing Counsel for applying for the certified copy thereof. But the fact as is evident from the certified copy placed on record is that it was applied on 28.04.2018 i.e. more than two months after the order was passed. Subsequent thereto, vide letter dated 14.03.2018, learned Chief Standing Counsel was requested for his legal opinion on the matter.
8. The fact remains that the copy of the order dated 05.02.2018 was with the Department and a request was made to the learned Chief Standing Counsel for applying for the certified copy thereof, however, still in that letter, request was not made for seeking opinion of the learned Chief Standing Counsel. The communication was made two weeks' thereafter. Reminders were sent to the office of the Chief Standing Counsel on 04.04.2018, 20.04.2018, 10.05.2018, 11.06.2018 and 13.07.2018. Meaning thereby for a period of four months, the matter remained pending with the office of Chief Standing Counsel. Thereafter opinion was given for filing a Special Leave to Appeal against the order passed by the learned Single Judge.
9. On 27.04.2018, Senior Superintendent of Police, Lucknow requested learned Chief Standing Counsel to re-examine the legal opinion rendered on 06.08.2018. The learned Chief Standing Counsel opined that the case is fit for filing the Special Appeal. Thereafter vide letter dated 11.08.2018, the matter was referred to the Government for permission to file appeal. Reminder was sent on 20.08.2018. Thereafter vide communication dated 31.08.2018, permission was granted by the Government to file Special Appeal against the order dated 05.02.2018 passed by the learned Single Judge.
10. Vide letter dated 29.09.2018, the Senior Superintendent of Police, Lucknow requested the learned Chief Standing Counsel to take steps for filing the Special Appeal.
11. From a perusal of the aforesaid facts stated by the applicant/appellant in the affidavit filed in support of the application seeking condonation of delay, it is evident that the appellant/State-Authorities were casual at different levels in dealing with the matter. As to how an application filed by the State seeking condonation of delay has to be dealt with has invited attention of the Courts on a number of occasions. Initially, the view was that the State Machinery being impersonal, the Courts should be liberal in granting condonation of delay, however, seeing the repeated inaction and casualness in approach on the part of the Authorities in filing the appeals after a huge delay, the view had to be re-visited.
12. In Postmaster General and others's case (Supra) considering the facts of that case, which were similar to the case in hand, the Hon'ble Supreme Court opined that 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 aforesaid observation was made about a decade back and there is lot of technological advancements thereafter. But apparently, the matters here are being dealt with in the old fashion. Separate period of limitation has not been provided for filing appeals by the State. The relevant paragraphs from the aforesaid judgment are extracted below:-
"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."
13. Recently, the Hon'ble Supreme Court in Bherulal's case (Supra) again considered the application filed by the State seeking condonation of delay in filing the Special Leave Petition. Similar arguments were made in support of the application, however, the same were rejected. Such type of cases were termed as "certificate cases". The application seeking condonation of delay was dismissed subject to costs of ₹ 25,000/-. Relevant paras nos. 4 to 8 thereof are extracted below:-
"4. A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only "due to unavailability of the documents and the process of arranging the documents". In para 4, a reference has been made to "bureaucratic process works, it is inadvertent that delay occurs".
5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.
6. We are also of the view that the aforesaid approach is being adopted in what we have categorised earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the officer concerned responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straightaway the counsel appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.
7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible.
8. Looking to the period of delay and the casual manner in which the application has been worded, we consider it appropriate to impose costs on the petitioner State of Rs 25,000 (Rupees twenty-five thousand) to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time."
14. Now coming to the pleadings of the applicants/appellants in th present case. We deem it appropriate to extract the grounds. The same read as under:-
" 4. That the Law Department vide Government Order dated 31.08.2018 granted permission for filing of the Special Appeal against the impugned judgment and order dated 05.02.2018 and the same has been received vide letter dated 07.09.2018 of the State Government.
5. That the Senior Superintendent of Police, Lucknow vide his letter dated 29.09.2018 requested the learned Chief Standing Counsel, High Court, Lucknow for taking appropriate action regarding filing of the Special Appeal.
6. That the duly authorized pairokar alongwith the letter dated 29.09.2018 contacted the office of the learned Chief Standing Counsel, High Court, Lucknow on 03.10.2018.
7. That the paper Book for preparing Special Appeal was allotted to the Standing Counsel on 25.10.2018 and on being contacted by the pairokar same day, he advised the pairokar to contact him again alongwith the relevant necessary records and explanations for the delay caused in filing the Special Appeal. Accordingly, the Pairokar contacted the Standing Counsel on 06.01.2019 and the Special Appeal along with the Applications for interim relief and condonation of delay alongwith their respective affidavits have been drafted on the same very date and the same is being filed without any further delay.
8. That the delay in filing of the Special Appeal is genuine, bonafide and unintentional. The Special Appeal could not be filed earlier as it took time in filing the administrative formalities by following certain norms and procedure of disciplined and systematic performance of official functions, which includes preparation of office notes etc., after scrutinizing various records, movement of files step by step through different sections and to different officers and lastly to the head of the department and thereafter forwarding the matter to the Administrative Department in the Government for appropriate decision. The similar procedure is adopted in the Administrative Department also. The aforesaid process takes some time as it depends upon so many factors/circumstances, such as preparation of office notes etc., as stated above, non-availability of certain necessary informations, as stated, non-availability of concerned officials/officers, various holidays in between and certain unavoidable and unspoken circumstances. It also took some time in obtaining the requisite permission of the law department and also in preparation of the Special Appeal and its appendices."
15. In the case in hand as well, from the facts as have been noticed above, we find that at every stage there was casual approach of the State-Authorities or officials working therein, who are paid salaries from the State Exchequer but they fail to perform their duties. They cannot be allowed sit idle or sleep over the files. They are accountable for their actions/inactions. In the case in hand, the position looks otherwise. The files cannot be left to be dealt with as if there is no limitation to file appeals. The kind of explanation given in support of the application seeking condonation of delay is not acceptable in terms of the law laid down by the Hon'ble Supreme Court, hence, the application for seeking condonation of delay is dismissed. As a result of which the appeal also stands dismissed.
16. However, before parting with the order, we are also conscious of the fact that the benefit of filing the delayed appeals should not go to a litigant at the cost of the State, with whom the officials may be in connivance. The responsibility needs to be fixed. In the case in hand, the appeal is being dismissed only on the ground of delay and latches, though it was found to be a fit case for filing appeal by the different Authorities of the State. We direct that whatever amount is to be paid to the respondent in terms of the order passed by the learned Single Judge of this Court, the same shall be recovered from the guilty officials/officers by holding a proper inquiry and the State shall not bear that burden under any circumstances. This will be a message to other officers in the State, why public at large, who are the contributors to the State-exchequer, should be made to bear the burden of the inaction by the different officers /officials in the State, which is paid out of the tax contributed by them.
17. The process of inquiry and recovery of the amount shall be completed within a period of four months from the date of receipt of copy of the order and a compliance report shall be submitted before the Senior Registrar of this Court, at Lucknow.
17. We also find it appropriate to record here that from the affidavit filed in support of the application seeking condonation of delay, it is evident that the system being followed after decision of cases needs to be re-visited. Office of Advocate General should ensure that after every case is decided by the Court, certified copy thereof should be applied for, immediately and not on the request made by the Department. Immediately, on receipt of the copy of the order, it should be sent to the Department concerned along with the opinion as to whether the case is fit for filing an appeal or not alongwith suggested grounds, instead of waiting for a letter from the concerned Department seeking opinion. Further, the letter should specifically state as to the date on which the limitation to file an appeal or availing any remedy against the order expires. It has to be ensured that opinion in the case alongwith copy of the order reaches the concerned department well before expiry of time for filing appeal and that date should be specifically mentioned. Benefit should be taken of technological advancements and the process could be online as well.
18. Let a copy of the order be sent to the Chief Secretary and Home Secretary, Government of U.P. for information and compliance. In case compliance report is not submitted within the period specified, the matter shall be listed in the Court only for the aforesaid purpose on July 18, 2022, otherwise the appeal stands dismissed.
Lucknow (Jaspreet Singh, J.) (Rajesh Bindal, C.J.) 24.02.2022
Asheesh/Rakesh
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes/No