Kerala High Court
Vinesh S vs State Of Kerala on 8 June, 2022
Author: Anil K. Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
Wednesday, the 8th day of June 2022 / 18th Jyaishta, 1944
CM.APPL.NO.1/2021 IN MJC NO. 119 OF 2021(E)
WP(C) 31126/2008 OF HIGH COURT OF KERALA, ERNAKULAM
PETITIONER/PETITIONER:
VINESH S. AGED 51 YEARS, S/O.N.SADASIVAN, INSTRUCTOR GRADE II
(CURRENTLY UNDER ORDERS OF TERMINATION), CHEMICAL ENGINEERING
DEPARTMENT, T.K.M.COLLEGE OF ENGINEERING, KOLLAM, KERALA - 691 005,
RESIDING AT SANDHYA NIVAS, PNRA-153, POLICE QUARTERA ROAD, NEMOM
P.O., THIRUVANANTHAPURAM - 695 020.
RESPONDENTS/RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER
EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE PRINCIPAL, TKM COLLEGE OF ENGINEERING, KOLLAM.
3. THE GOVERNING COUNCIL REPRESENTED BY ITS CHAIRMAN, TKM COLLEGE OF
ENGINEERING, KOLLAM.
4. THE CHAIRMAN, GOVERNING COUNCIL, TKM COLLEGE OF ENGINEERING, KOLLAM.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to condone the delay
of 1772 days in filing the above Miscellaneous Jurisdiction Case.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of M/S.S.ANEESH & M.S.MANISH, Advocates for the petitioner in
C.M.Appl.No.1 of MJC/WP(C) ,GOVERNMENT PLEADER for R1 in C.M.Appl.No.1 of
MJC/WP(C) and of GEORGE POONTHOTTAM SENIOR ADVOCATE along with SMT. NISHA
GEORGE, Advocates for the respondents 2 to 4 C.M.Appl.No.1 of MJC/WP(C),
the court passed the following:
EXHIBIT P1:TRUE COPY OF THE APPLICATION DATED 20.12.2007 SUBMITTED
BY THE PETITIONER FOR EXTENSION OF LEAVE.
EXHIBIT P2:TRUE COPY OF THE MEMO NO. E3-5/08 DATED 31.01.2008 ISSUED
BY THE 2ND RESPONDENT.
EXHIBIT P5:TRUE COPY OF THE G.O.(RT) 1285/08/H.EDN DATED 25.08.2008
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P6:TRUE COPY OF THE G.O.(MS) 27/86/h.EDN DATED 27.01.1986.
ANIL K. NARENDRAN, J.
-------------------------------------------
C.M.Appl.No.1 of 2021 & MJC No.119 of 2021
in
W.P.(C)No.31126 of 2008
--------------------------------------------
Dated this the 8th day of June, 2022
ORDER
The petitioner, an Instructor (Grade II) in T.K.M College of Engineering, Kollam, filed W.P.(C)No.31126 of 2008 seeking a declaration that Ext.P6 order dated 27.01.1986 issued by the 1st respondent State is ultra vires. The petitioner has also sought for a writ of certiorari to quash Ext.P2 memo dated 31.01.2008 issued by the 2nd respondent Principal of T.K.M College of Engineering and Ext.P5 order dated 25.08.2008 issued by the 1st respondent State and to direct the 1st respondent to consider and pass appropriate orders on Ext.P1 application dated 20.12.2007, as provided under Statute 25 of the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes, 1979 and Rule 64 of Part I of the Kerala Service Rules, within a time to be fixed by this Court.
2. On 22.05.2015, when this writ petition came up for final hearing, there was no representation for the petitioner. On 04.06.2015 also there was no representation. On that day, the learned Standing Counsel for respondents 2 to 4, on instructions, W.P.(C)No.31126 of 2008 -2- submitted that in the year 2008 itself, the petitioner was terminated from service and he is no more in service of the College. In such circumstances, this Court by the judgment dated 04.06.2015, dismissed the writ petition for default.
3. On 30.11.2021, the petitioner filed MJC No.119 of 2021 to restore W.P.(C)No.31126 of 2008 which was dismissed for default on 04.06.2015, along with C.M.Appl.No.1 of 2021, under Section 5 of the Limitation Act, 1963 seeking an order to condone the delay of 1772 days in filing the MJC. Paragraphs 4 to 7 of the affidavit filed in support of C.M.Appl.No.1 of 2021 read thus;
"4. It is submitted that during the pendency of the Writ Petition the petitioner lost his employment at Al Hai & Al Mukaddam for Geo Technical Works (LLC) as shown in the cause title of the Writ Petition on 05.04.2009 and was constrained to come back to India. He has thereafter been earnestly pursuing his contentions raised in the Writ Petition but was again forced to seek employment abroad at Al Bahara Technical Laboratories, Qatar on 01.03.2011 owing to financial stringency. Although, the same was intimated to the counsel for the petitioner and it is understood that the counsel for the petitioner tried to intimate the petitioner regarding the dismissal of the suit for default by writing to the address provided in the Writ Petition, the same never reached the petitioner. It is only much later in the year 2018, when the petitioner contacted his counsel that the fact of the dismissal of the Writ Petition W.P.(C)No.31126 of 2008 -3- could be intimated to the petitioner. However, during the time, the petitioner was suffering from several ailments and since he was reeling under financial stringency, the petitioner was precluded from travelling to India and meeting the counsel for filing the necessary petitions for restoring the Writ Petition.
5. Thereafter, due the onset of the global Covid-19 pandemic, and the imposition lockdown and later the ban imposed on international travel, the petitioner could not make arrangements for filing the necessary petition to restore the above Writ Petition. Although, the counsel was contacted thereafter on 20.09.2021, he informed the petitioner that the files relating to the Writ Petition filed by the Petitioner have been misplaced and could not be traced. It is only thereafter, that an application for a copy of the files of the Writ Petition could made on 15.11.2021 and a copy procured and new counsel engaged for filing the above Miscellaneous Jurisdiction Case.
6. The above Writ Petition was dismissed on 04.06.2015 and the application for restoration ought to have been filed on or before 03.07.2015. However, despite the best efforts of the petitioner the Miscellaneous Jurisdiction Case could not be filed on time. Therefore, excluding the period from 15.03.2020 to 02.10.2021 as ordered by the Hon'ble Supreme Court in the matter of In Re: Cognizance of Extension of Limitation [2021 (5) KHC 508 (SC)], there is a delay of 1772 days in filing the above Miscellaneous Jurisdiction Case.
7. It is submitted that the delay caused in filing the above Miscellaneous Jurisdiction Case is not due to any willful negligence or laches on the part of the petitioner, but only due to the facts stated above. The petitioner deeply regrets W.P.(C)No.31126 of 2008 -4- any inconvenience caused to the Court. Unless heard on merits, it will cause serious prejudice to the petitioner. "
(underline supplied)
4. The 2nd respondent, the Principal of T.K.M College of Engineering College has filed a counter affidavit opposing the relief sought for in the C.M.Application. Paragraphs 2 to 9 of the said counter affidavit read thus;
"2. It is submitted that the Miscellaneous Jurisdiction Case is filed to restore the Writ Petition bearing W.P(C) No.31126 of 2008. The Writ Petition was filed seeking inter alia a declaration that Exhibit P6 is ultra vires and to quash the same along with Exhibits P2 and P5 and for a direction to the 1st respondent to pass appropriate orders on Exhibit P1 application as provided under Statute 25 of the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes, 1979 and Rule 64 of Part I of the Kerala Service Rules within a time period that may be fixed by this Hon'ble Court.
3. It is submitted that the petitioner was working as an Instructor (Gr II) in the 2nd respondent college and had availed Leave Without Allowance for a period of 5 years with effect from 24.03.2003 to take up a job abroad.
On 20.12.2007 the petitioner submitted an application for extension of Leave Without Allowance before the 3rd respondent and the same was rejected. Aggrieved by this, the petitioner approached this Hon'ble Court. The Hon'ble Court vide judgment dated 11.04.2008 W.P.(C)No.31126 of 2008 -5- directed the petitioner to file a representation before the 1st respondent. The 1st respondent considered this matter in detail and held that the educational agency has power to allow or disallow the application of its teachers for leave without allowance. Challenging the said order, the petitioner again approached this Hon'ble court filing the above Writ Petition. During the pendency of the writ petition, he was working abroad. He continued to work abroad as evident from his own pleadings and was reluctant to inquire about the progress of the case as evident from the case history itself. As evident from the actions of the petitioner, he has abandoned the job and was enjoying the fruits of his foreign employment and it is only after 7 years of the dismissal of the Writ Petition, he choose to file the M.J.C.
4. The Writ Petition came up before the Hon'ble Court on 22.05.2015, but there was no representation for the Petitioner. The matter was again listed on 04.06.2015, on which day also there was no representation for the Petitioner and this Hon'ble Court after recording the submission of the Counsel for the respondents that the petitioner had been terminated from service, dismissed the above Writ Petition for default.
5. It is pertinent to submit that the petitioner had remained silent all these years and has approached this Hon'ble court now, to restore the writ petition and also to condone the delay of 1772 days in filing the above Miscellaneous Application. The petitioner failed W.P.(C)No.31126 of 2008 -6- to provide any cogent reason in the miscellaneous application and further, nothing else has been put forth which would justify condoning the delay in filing of the miscellaneous application to restore the writ petition. In the absence of proper explanation, acceptable and cogent reasons sufficient to condone the delay, the delay cannot be condoned. In Office of the Chief Postmaster General and others v. Living Media India Ltd. and others [AIR 2012 SC 1506], the apex court held that "the law shelters everyone under the same light and should not be swirled for the benefit of a few. 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". In Majji Sannemma @ Sanyasirao v. Reddy Sridevi and others [Civil Appeal No.7696 of 2021], the Supreme court held that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondents Nos.1 and 2 herein - appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning a huge delay of 1011 days is not germane. Therefore, the High Court has erred in W.P.(C)No.31126 of 2008 -7- condoning the huge delay of 1011 days in preferring the appeal by respondent Nos.1 and 2 herein-original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.
6. As per the averment made by the petitioner in paragraph 3 of the affidavit in delay petition, it is clear that only after 10 years of filing the writ petition, that is in 2008, he made an inquiry with regard to the case. Which indicates that he is not at all interested in the case and not at all interested in the employment in the 2nd respondent college. The petitioner has abandoned the service and opted for working abroad. The petitioner left his employment in the year 2003. Thereafter, he failed to show any interest in rejoining the service in the 2nd respondent college. The petitioner had been absent continuously for a long period of time which clearly indicates his disinterest in continuing his employment. It is imperative to point to this Hon'ble Court, the action of the petitioner clearly reveals 'abandoning of employment'. After filing the instant Writ Petition, the Petitioner went back again to continue his foreign employment. The actions of the Petitioner indicate that he did not have any interest in the employment at the 2nd respondent college. The Petitioner continued his employment even after 2018 and did not take any effective steps to file an application to restore the Writ Petition. It is clear that the Petitioner has abandoned the service and gave up his employment at the respondent college.
W.P.(C)No.31126 of 2008-8-
7. The principles laid down in Vinod S. v. Kerala State Electricity Board Ltd. and others [2020 KHC 842] is noteworthy in this regard. When the employee has abandoned the service by his unilateral action, he is no longer in the rolls of the establishment for the purpose of requiring such a procedure to be complied with. Thus, when there is an explicit and intentional abandonment of service based on the willful failure to rejoin the duty after long leave, as evident from the facts in each case, it is not required to conduct a departmental enquiry. Failure to conduct a departmental enquiry in such cases will not violate the principles of natural justice. In Aligarh Muslim University and others v. Mansoor Ali Khan [(2000) 7 SCC 529], the Supreme Court held that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceased to be in service. In such a case, there is no need to hold an enquiry or to give any notice, as it would amount to useless formality.
8. It is submitted that M.J.C itself is not maintainable. The petitioner approached this court with unclean hands. If the petitioner is entitled for any pension as adduced in the application, he has to initiate fresh proceedings. The petitioner has not engaged in a fair practice by filing the instant miscellaneous application to restore the Writ Petition, which was dismissed earlier in default by this Hon'ble Court.
9. The petitioner could not give any satisfactory W.P.(C)No.31126 of 2008 -9- explanation and cogent reason for the delay of more than 1772 days in affidavit attached for condoning the delay. In view of the law laid down by the Apex Court, the delay in filing the case cannot condone. The M.J.C. Itself is devoid of any merit in view of the law laid down by this Court."
5. Heard the learned counsel for the petitioner, the learned Government Pleader for the 1st respondent and also the learned Senior Counsel for respondents 2 to 4.
6. The learned counsel for the petitioner would contend that the petitioner has shown sufficient cause in the affidavit filed in support of this C.M.Application, for condonation of delay. Therefore, the delay of 1772 days in filing MJC No.119 of 2021 may be condoned. Per contra, the learned Senior Counsel for respondents 2 to 4 would contend that, in the absence of sufficient cause shown in the affidavit filed in support of this C.M.Application, the inordinate delay of 1772 days in filing MJC No.119 of 2021 cannot be condoned.
7. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any application, other than an application under any of the provisions W.P.(C)No.31126 of 2008 -10- of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
8. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led W.P.(C)No.31126 of 2008 -11- to the delay.
9. In Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107 : AIR 1987 SC 1353], in the context of Section 5 of the Limitation Act, 1963, a Two-Judge Bench of the Apex Court held that, the expression 'sufficient cause' employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, that being the life-purpose for the existence of the institution of courts.
10. In Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649] a Two-Judge Bench of the Apex Court while summerising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, 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. [See: Para.21]
11. In Esha Bhattacharjee, after summerising the W.P.(C)No.31126 of 2008 -12- principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that 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. 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. [See: Para.22]
12. In Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34] a Division Bench of this Court held that, though the expression 'sufficient cause' employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex Court in Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107], the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]. W.P.(C)No.31126 of 2008 -13- Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner.
13. In Post Master General v. Living Media India Ltd. [(2012) 3 SCC 563], a decision relied on by the learned Senior Counsel for respondents 4 to 4, the Apex Court reiterated the law laid down in Commissioner of Wealth Tax, Bombay v. Amateur Riders Club [(1994) Supp. 2 SCC 603] that, there is a point beyond which even the courts cannot help a litigant even if the litigant is Government, which is itself under the shackles of bureaucratic indifference. The law of limitation binds everybody. It is true that Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also.
13.1. The office of the Chief Post Master General filed SLPs against the judgment dated 11.09.2009 of the Division Bench of the Bombay High Court in L.P.A.Nos.418 and 1006 of 2007, W.P.(C)No.31126 of 2008 -14- arising out of the judgment of the learned Single Judge dated 28.03.2007 in W.P.(C)Nos.22679-80 of 2005 and W.P.(C)No.4985 of 2006. The 1st respondent, Living Media India Ltd., submitted an application to the Postal Department seeking permission to post December 2005 issue of Reader's Digest magazine containing the advertisement of Toyota Motor Corporation in the form of a booklet with calendar for the year 2006 at concessional rates in New Delhi. By the letter dated 08.11.2005, the Postal Department denied grant of permission for mailing the said issue at concessional rates on the ground that the booklet containing advertisement with calendar is neither a supplement nor a part and parcel of the publication. On 17.11.2005, the 1st respondent submitted another application seeking the same permission, which was also denied by the Postal Department by the letter dated 21.11.2005. The 1st respondent, being aggrieved by the decision of the Postal Department filed writ petitions before the High Court. The learned Single Judge allowed both the writ petitions. Being aggrieved, the Postal Department filed appeals. The Division Bench dismissed both the appeals, thereby upholding the judgment of the learned Single Judge. Challenging the said judgment, the Postal Department filed SLPs before the Apex Court, along with an application for condoning the delay of W.P.(C)No.31126 of 2008 -15- 427 days in filing the SLPs. The learned Senior Counsel for the respondents seriously objected to the conduct of the Postal Department in approaching the Apex Court after enormous and inordinate delay of 427 days. In view of the fact that the application for condonation of delay in filing the SLPs dated 10.02.2011 does not contain acceptable and plausible reasons, the Apex Court permitted the Postal Department to file a better affidavit explaining the reasons for the same. Pursuant to the same, an affidavit has been filed on 26.12.2011. In paragraph 20 of the judgment, the Apex Court extracted the entire statement placed in the form of 'better affidavit' by the officer of the Postal Department.
13.2. The Apex Court noticed that, as stated in the 'better affidavit', the Department was aware of the date of the judgment of the Division Bench as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for the certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied for only on 08.01.2010, i.e., after a period of nearly four months. In spite of W.P.(C)No.31126 of 2008 -16- 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 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 before the Apex Court by taking appropriate steps. The persons 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 SLP. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. Though, 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, the claim on account of impersonal machinery and inherited bureaucratic W.P.(C)No.31126 of 2008 -17- 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. 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. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, the Apex Court held that the Postal Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the Apex Court dismissed the appeals on the ground of delay.
14. In Deputy Conservator of Forests v. Timblo W.P.(C)No.31126 of 2008 -18- Irmaos Ltd. [order dated 18.12.2020 in S.L.P.(C) Diary No.19059 of 2020] the Special Leave Petition against the judgment dated 07.02.2019 of the High Court of Bombay, Goa Bench in M.C.A.No.248 of 2016 was filed with a delay of 462 days. M.C.A.No.248 of 2016 was dismissed for non-prosecution on 03.09.2014. An application for restoration was filed before the High Court on 05.01.2016, along with an application for condonation of delay. That application was dismissed by the order dated 07.02.2019, which was sought to be challenged before the Apex Court, by filing an SLP with a delay of 462 days. Before the High Court, it was claimed that the petitioner should not suffer for the fault of the counsel. The High Court opined that such substantial delay could not be condoned by mere shifting of blame on the counsel as the parties are required to keep track of the matter and there is negligence despite numerous opportunities. The matter is further aggravated by filing an SLP with a delay of 462 days and once again the excuse is of change of counsel. A Three-Judge Bench of the Apex Court, after referring to the law laid down in Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107], Post Master General v. Living Media India Ltd. [(2012) 3 SCC 563] and also Deputy Conservator of Forests v. Timblo Irmaos Ltd. and others W.P.(C)No.31126 of 2008 -19- [order dated 18.12.2020 in S.L.P.(C) Diary No.19059 of 2020], dismissed the SLP as time barred and imposed cost of Rs.15,000/- on the petitioners, for wastage of judicial time, which was directed to be recovered from the officers responsible for the delay.
15. In the instant case, since the writ petition was dismissed for default on 04.06.2015, the petitioner ought to have filed the application for restoration on or before 03.07.2015. The petitioner filed MJC only on 30.11.2021. The extent of delay in filing the MJC is 1772 days, after excluding the period from 15.03.2020 to 02.10.2021 as per the orders of the Apex Court In Re: Cognizance of Extension of Limitation [2021 (5) KHC 508 (SC)].
16. In the affidavit filed in support of this C.M.Application, it is stated that, during the pendency of the writ petition the petitioner lost his employment at Al Hai & Al Mukaddam for Geo Technical Works (LLC) on 05.04.2009 and therefore, he came back to India. Thereafter, he got employment at Al Bahara Technical Laboratories, Qatar on 01.03.2011. The change in employment was intimated to the counsel for the petitioner, who tried to intimate him regarding the dismissal of the writ petition for default, by sending a letter in the address provided in the writ W.P.(C)No.31126 of 2008 -20- petition, which never reached him. It is only much later in the year 2018, when the petitioner contacted his counsel, that the fact of the dismissal of the writ petition could be intimated to him. During that time, the petitioner was suffering from several ailments. Since the petitioner was reeling under financial stringency, he was precluded from travelling to India and meeting the counsel for filing the necessary petitions for restoring the writ petition. Thereafter, due to the onset of the global Covid-19 pandemic, the imposition of lockdown and later the ban imposed on international travel, he could not make arrangements for filing the necessary petitions to restore the writ petition. Although, the counsel was contacted thereafter on 20.09.2021, he informed the petitioner that the files relating to the writ petition have been misplaced and could not be traced out. It is only thereafter, that an application for a copy of the files of the Writ Petition could be made on 15.11.2021 and a copy procured and a new counsel was engaged for filing this MJC. In the affidavit it is stated that the delay caused in filing the MJC is not due to any willful negligence or laches on the part of the petitioner, but only due to the facts stated above.
17. As held by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC 649] the concept of liberal approach is to W.P.(C)No.31126 of 2008 -21- encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. There is a distinction between inordinate delay and a delay of short duration or few days, 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. In the affidavit filed in support of CM Appl., the petitioner has not offered sufficient cause for condonation of inordinate delay of 1172 days. The application for condonation of delay has been drafted 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.
18. This Court finds no reason to condone the delay of 1772 days in filing the MJC and the same is accordingly dismissed. MJC No.119 of 2021
In view of the dismissal of C.M.Appl.No.1 of 2021, this MJC is also dismissed.
Sd/-
ANIL K. NARENDRAN JUDGE AV 08-06-2022 /True Copy/ Assistant Registrar