Gujarat High Court
Rashtriya Mazdoor Union vs Hindustan Petroleum Corporation Ltd. on 13 May, 2005
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. In Delhi Development Authority v. Skipper Construction and Anr. reported in 2005 (3) Supreme 335, it has been observed by the apex court as under:
"There are some cases which at times strengthen the idea that existing laws may be inadequate to grant relief to persons whom, the court feels genuinely to be entitled to relief. Courts, more particularly, this court, will not adjure its duty to prevent violent miscarriage of justice by passing such orders as are necessary to uphold the rule of law and lift the veil of purported legality over such perfidious acts. In such cases the Court should not allow itself to be deflected by red herrings drawn across the track. It has to pass such orders as the circumstances warrant, of course within the four corners of law to secure the interest of justice and to appease its judicial conscience. The facts of the present case have some such unique features. In Miller v. Minister of Pensions (1947 (2) All ER 373), it was observed that the law would fail to protect community if it admitted fanciful possibilities to deflect the course of justice. Technicalities should not stand in the way of Courts doing substantial justice. "
2. Heard learned advocate Mr. P.H. Pathak with Mr. Handa for the applicant and Mr. A.K. Clerk with Mr. G.N. Shah, learned advocates for the respondent. This application has been filed by the applicant for restoration of SCA NO. 711 of 1992 on 29th April, 2005. This Court has, while issuing notice to the other side on 29th April, 2005, meanwhile, directed the respondents not to terminate the services of the workmen whose names have been mentioned in para 1 of the Special Civil Application No. 711 of 1992 otherwise in accordance with law. Respondent has filed reply dated May 6, 2005 opposing the present application for restoration. Copy thereof has been served upon the petitioner and rejoinder thereto has also been filed on behalf of the petitioner by one of the workmen namely Mr. J.B. Makwana on 12th May, 2005. Copy thereof has been served upon the respondent. No sur rejoinder thereto has been filed by the respondent thereafter.
3. In the main petition, the petitioner Rashtriya Mazdoor Union has challenged the award passed by the Presiding Officer, Industrial Tribunal, Ahmedabad in Reference (ITC) No. 31 of 1989 dated 10th October, 1991 wherein the reference was dismissed by the industrial tribunal, Ahmedabad. Dispute between the parties as per the demand raised by the union was in respect of the employees engaged on casual/contract basis by the Management Hindustan Petroleum Corporation Ltd. was for permanency and other consequential and fringed benefits is justified and if so, to what relief the workmen concerned are entitled ? According to the petitioner union, the workmen were in service from 1983-84. The industrial tribunal adjudicated the dispute and ultimately dismissed the reference which was made at the instance of the petitioner union. In petition, rule was issued by this court (Coram : AP Ravani & C.K. Thakkar, JJ.) on 12.2.1992 and by way of ad. interim relief, the respondents were directed not to terminate the services of the workmen whose names have been mentioned in paragraph 1 of the petitioner otherwise than in accordance with law. The exact order passed by this Court on 12.2.1992 in SCA No. 711 of 1992 is reproduced as under:
"Rule. By way of ad. interim relief, respondent is directed not to terminate the service of the workmen whose names are mentioned in para 1 of the petition otherwise than in accordance with law."
4. Petition remained pending before this court till it was dismissed by this court for default. From the record, it appears that the respondent has not filed any reply against the petition. However, learned advocate Mr. Clerk has made it clear that he is having copy of the reply dated 19.10.1993 but from perusal of the record, it appears that no reply has been annexed to the petition. Main petition remained pending for final hearing for about more than 12 years before this court and ad.interim relief granted on 12.2.1992 remained in operation till the petition was dismissed for default by this court. According to the applicant, when the said petition was listed on 12.2.2004, said petition was entrusted by Mr. Handa to the learned advocate Mr. P.H. Pathak to appear on his behalf but Mr. Pathak has not appeared in the petition on 12.2.2004 and ultimately this court dismissed the petition on 19.2.2004. Said order dated 19.2.2004 is reproduced as under:
"The list has been revised thrice but despite this, learned advocate Mr. P.K. Handa appearing on behalf of the petitioner has not remained present on all three occasions. However, learned advocate Ms. M.A> Shah has remained present on all three occasions. Even on earlier occasion also on 12.2.2004, learned advocate Mr. Handa has not remained present but on that occasion, the matter came to be adjourned at the request of learned advocate Ms. M.A. Shah. Not only that, nobody has mentioned this matter on behalf of the petitioner and as such, no leave note and sick note is filed by the learned advocate for the petitioner. Therefore, there is no option with this court except to dismiss the matter in default. The present petition stands dismissed for default for non prosecution. Rule stands discharged. Interim relief, if any, stands vacated. No order as to costs. "
5. From the order dated 12.2.2004 in SCA No. 711 of 1992, it appears that a submission was made by Ms. M.A. Shah that learned advocate Mr. Pathak now appears vice learned advocate Mr. Handa. Therefore, said order is also reproduced as under:
"Learned advocate Mrs. M.A. Shah appearing on behalf of the respondent submits that learned advocate Mr. P.H. Pathak now appears vice learned advocate Mr. Handa and further submits that since the matter is circulated all of sudden, requests for some time. Before adjourning the matter, it is observed that the matter is of the year 1992 but considering the request, adjourned to 17th February, 2004."
6. In the application, averments have been made by the applicant that the learned advocate Mr. P.K. Handa is coming from the out station and was not feeling well and he was unable to file leave note and therefore, papers were handed over to the learned advocate Mr. Pathak to appear in the matter but he has not filed appearance and, therefore, his name was not shown in the board and due to that reason, the matter was dismissed for default and that may be a lapse on the part of the advocate. Further, the applicant has averred in para 4 of the application that these workmen were working since sixteen years with the respondent and if the stay is not granted, then, they will suffer great injustice as they were not aware about order dated 19.12.2004, therefore, they have not filed restoration application immediately. According to the applicant, they came to know about the said order when the respondents were going to terminate the services of the workmen concerned and immediately they approached this court by filing the present application for restoration. Therefore, in para 5 of the application, prayer for restoration of the matter has been made and it has been prayed for fixing the petition for final hearing while dispensing with the affidavit. This application for restoration was filed by the learned advocate Mr. Handa.
7. The respondents have, by filing the reply to this application, opposed restoration as well as grant of interim relief. It is contended that these workmen are not the workmen of the respondents but they are the workmen of the contractor. It is also contended that the workmen had already approached the Deputy Chief Labour Commissioner, Bombay for parity of wages under the Contract Labour Regulation and Abolition Rules, 1971, therefore, according to the respondent, the workmen are the contract labour even according to their own admission. Averments have also been made about delay in filing the present application for condonation. Such delay cannot be condoned for the lapse and negligence on the part of the petitioner. Applicants are not approaching this court with clean hands and they are having ulterior motive in not filing the present application in time and filing the same at the last moment when the new contractor was supposed to take charge and perform his contractual obligations in terms of the agreement. The respondent has also pointed out in the reply on merits of the main matter and subsequent development of changing of contractor and reduction of work and not requiring more workmen. Details of reduction in work in last six months have been given by the respondent. It is also stated that the third party interest have already been created by handing over contract to the new contractor.
8. In rejoinder filed by the petitioner through one of the workmen Shri JB Makwana, the averments made by the respondents in their reply have been denied and it is contended that since more than 12 years, ad.interim relief has remained in operation but no application was filed by the respondent for vacation of the interim relief granted in the year 1992. They are working since more than sixteen years with the respondents and, therefore, matter may be restored and interim relief may be restored. The petitioner has also averred in the rejoinder that they were unaware about the order of this court on 19.2.2004 and that for the lapse or omission or default on the part of their advocate, they should not be made to suffer. According to the deponent of the affidavit in rejoinder filed on behalf of the petitioner, the concerned workmen are the beneficiaries of the ad.interim relief and they are the concerned workmen in the reference and the industrial dispute was raised by the union and the workmen are members of the union and they are concerned workmen in the reference. There is also answer to the contentions of the respondent about their approaching the Deputy Chief Labour Commissioner under the provisions of the Contract Labour Regulation Abolition Act. According to the petitioner, said contract is sham and bogus and there is no reduction in the work as suggested by the respondents. According to the petitioner, the workmen are being exploited by the respondent and, therefore, delay may be condoned while restoring the petition with original interim relief granted in the year 1992.
9. It was submitted by the learned advocate Mr. P.H. Pathak that on 12.2.2004, he was to appear as mentioned by Ms. M.A. Shah before this court but the union people had not approached him in time, therefore, he was not able to remain present on 12.2.2004 as his name was not shown in the board. However, on the next day 19.2.2004, this matter was taken up by this court and before that day, he could not receive instructions, therefore, none appeared on behalf of the petitioner and the petition was dismissed for default by this court. According to his submission, no prejudice is going to be caused to the respondent if the matter is restored and interim relief is revived as granted on 12.2.1992. Learned advocate Mr. Pathak submits that there is some lapse on the part of the advocate for the workmen and for such lapse or omission, the workmen should not be made to suffer. He also submitted that the workmen could derive the knowledge of the order dated 19.2.2004 three to four days prior to 29.4.2005 when they received information from the respondent about termination of service of the workmen concerned and immediately thereafter, they have approached this court for restoration of the main matter, so, there is delay on their part but since the workmen were unaware of the same, such unawareness prevented them from approaching this court and, therefore, delay may be condoned. He also emphasized that the ex parte ad.interim order remained in operation for more than twelve years and in the mean time, no application for vacating the ad.interim relief was filed by the respondent which would means that the respondents are having the work which is of a permanent nature and the workmen are working on such work of a permanent nature and, therefore, no such application for vacation of interim relief was filed by the respondent. He also submits that ten workmen are working with the respondent and they are continuing till this date. In short, it was his submission that the question of livelihood of ten workmen concerned is involved in the matter, their petition was dismissed for default without adjudication by the court and therefore, they should be given chance or opportunity to argue their case before this court on merits by restoring the petition with interim relief without entering into such technicalities. According to his submission, no harm or prejudice is going to be caused to the respondent.
10. On the other hand, learned advocate Mr. Clerk appearing for the respondent has submitted that the present restoration application is grossly delayed by about fourteen months. New contractor has been appointed on 30.4.2005 who would require only six workmen. He submits that if the petitioner would have remained vigilant, then, they would have immediately filed the application for restoration but no such care has been taken by the petitioner and they have rushed before this court for restoration at the last moment and obtained ad.interim order from this court. He also contended that unless the main matter is restored, this court is not having jurisdiction to grant interim relief and no prayer is made in the application for grant of interim relief. Workmen continued for about twelve years because of the operation of the stay. According to him, now there is no work available with the respondent for the workmen and loading work has been done by the IOC where the workmen are connected only with the work of handling wagon in IOC premises and not in the respondent premises. Because of some incident of fire, number of wagon has been reduced, therefore, work has been reduced which would require only six workmen as per the new contract. He also submits that the work is not of a permanent nature with the respondent, therefore, interim relief may be vacated as public corporation would have to pay the idle wages to the workmen. He also submits that subsequently, material changes have come into operation and in view of that, interim relief may be vacated. He has relied upon the following decisions :
(1) AIR 1952 SC page 12 [The State of Orissa v. Madan Gopal Rungta] (3) Madras High court decision reported in 2000 II LLJ 1033 [Jet Airways (India) Ltd. and Jet Airways Thozilalar Sangham and Ors.].
11. Except these decisions, no other decisions were cited by Mr. Clerk before this Court. Except the submissions recorded hereinabove, no other submissions were made by Mr. Clerk before this Court.
12. I have considered the submissions made by the learned advocates for the parties as well as the facts and circumstances of the case. This court is having jurisdiction to consider the restoration application. The petition was dismissed by this court on 19.2.2004 for default. Against that order, this restoration application has been filed by the petitioner on 29.4.2005. At the time of receiving the application, this court passed the following order on 29.4.2005:
"Today, learned advocate Mr. P.K. Handa has made mention of this matter before this court that this court has dismissed special civil application No. 711 of 1992 for default by order dated 19thFebruary, 2004. He also submitted that in special civil application No. 711 of 1992, interim relief was granted by this Court on 12.2.1992 which has remained continue till the date of dismissal of the petition for default on 19.2.2004. He submitted that he was not aware about this order because the papers were handed over to the learned advocate Mr. P.H. Pathak who was to appear in the petition on behalf of the petitioner. Name of the learned advocate Mr. P.H.Pathak has not been shown by the department when the matter was circulated, therefore, he was not aware about the matter as well as learned advocate Mr. Handa was not aware about the circulation of the matter on the board He also submitted that he is coming from out side and, therefore, he was not having knowledge of circulation of the matter on the board on 19.2.2004, therefore, this court dismissed the petition for default in absence of the advocate. He submits that there is delay in filing the present miscellaneous civil application and request is made to condone the same in the interest of justice. He submits that the workmen those who are concerned in the petition are working since more than sixteen years and they have been protected by this court by way of interim order dated 12.2.1992. He submits that the copy of this MCA was served to the learned advocate Mr. G.N. Shah who is appearing for the respondents. He requested to take up the matter today itself in view of the urgency involved in the matter that the respondents are likely to terminate the service of the workmen concerned whose names have been mentioned in para 1 of the petition on or before 1st May, 2005. Considering his request, it was suggested by this court to Mr. Handa that Mr. Handa should come with the advocate Mr. G.N. Shah and this court will consider the matter in presence of both the learned advocates. Simultaneously, papers of this Miscellaneous Civil Application were called from the office by issuing directions and pursuant to the directions of this court, office has send the papers of this application.
However, after the papers were received by this court in chamber, learned advocate Mr. P.K. Handa submits that he gave telephonic ring to the learned advocate Mr. G.N. Shah to appear before this court today but Mr. G.N. Shah replied that he has already reached to his office and now, it is not possible for him to come. In these circumstances, it was prayed by Mr. Handa before this court that till the notice is served upon the other side, the concerned workmen may be protected considering interim relief which was granted by this court on 12.2.1992 and which had continued to remain in operation for more than 12 years, in the larger interest of justice so that the services of the concerned workmen are protected and not terminated only on the ground that their special civil application No. 711 of 1992 was dismissed for default by this court. It was his prayer to consider the matter for ad.interim protection pending the present miscellaneous civil application.
I have considered the submissions made by Mr. Handa for the applicants. Interim order passed by this Court (Coram : AP Ravani & CK Thakkar,JJ.) on 12.2.1992 is reproduced as under:
"Rule. By way of ad.interim relief, respondent is directed not to terminate the service of the workmen whose names are mentioned in para 1 of the petition otherwise than in accordance with law."
Therefore, considering the urgency involved in the matter considering the request made by the learned advocate Mr. P.K. Handa and also considering the fact that the advocate Mr. G.N.Shah for the other side is not present, according to my opinion, it would be in the larger interest of justice to issue notice to the other side returnable on 6.5.2005 and in the mean time, ad.interim relief in terms of the order dated 12.2.1992 is required to be granted.
Hence, notice to the respondents returnable on 6th May, 2005. Meanwhile, it is directed to the respondent not to terminate the service of the workmen whose names are mentioned in para 1 of the Special Civil Application No. 711 of 1992 otherwise than in accordance with law.
Direct Service is Permitted TODAY."
13. The facts which are not in dispute are as under:
The award made by the industrial tribunal is challenged by the petitioner union and this court has issued rule and granted ad.interim relief in favour of the concerned workmen whose names have been mentioned in para 1 of the petition on 12.2.1992. This ex parte ad.interim order remained in operation till the petition was dismissed by this court for default on 19.2.2004. Question of delay is raised by the respondent. This Court while restoring the matter, cannot consider such technical stand taken by the respondent for not restoring the matter because of the delay in filing of the present application. Delay is not due to the workmen concerned but delay is because of the advocate concerned who was appearing in the matter and for the lapse on the part of the advocate concerned, the workmen cannot be made to suffer. Beneficiaries of the present proceedings are the concerned workmen whose names have been mentioned in para 1 of the petition. Law on this subject about delay is almost settled that the court should not take a technical stand or approach while examining question of delay. Technicalities cannot hijack rhythm divine of justice. Contention of the respondent about delay while opposing the present application is being only technical plea is required to be examined while keeping in view the law on this point.
14. In Rafiq and Anr., Appellants v. Munshilal and Anr., Respondents, reported in AIR 1981 SUPREME COURT 1400, the apex court has observed that "The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."
15. The observations made by the apex court in para 3 of the said judgment are reproduced as under:
"3 The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the happening in the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up on the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K.Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi."
16. In Mrs. Sandhya Rani Sarkar, Appellant v. Smt. Sudha Rani Debi and Ors., Respondents, reported in AIR 1978, SC 537, the apex court observed as under in para 3 of the judgment:
" The appellant before the High Court did honestly believe that the decree was a preliminary decree and only after the deposit as directed therein was made by the plaintiff purchaser that a final decree would be made. The learned trial judge has also styled it as a preliminary decree. Subsequent steps which have been listed in detail above clearly show that the plaintiff purchaser did not deposit the amount and in fact got a Commissioner appointed for determining the area of excess land and when the report of the Commissioner was accepted by the trial court, that decision was questioned by the plaintiff in Civil Revision No. 3195/65. If since the decree since the decree the plaintiff sought extension of time for depositing the amount which was the obligation imposed by the decree the performance of which will make the decree executable against judgment debtor, may honestly, though erroneously, believe that there was no decree against which she could appeal unless the deposit was made. The decree also provided that failure to deposit would entail dismissal of the suit. the defendant may honestly believe that if the consideration is not deposited the suit would stand dismissed and it would not be necessary to prefer an appeal at all. Such a contention may not stand the scrutiny of a law Court but the question to which we must address ourselves is whether the defendant vendor on account of this peculiar situation could be said to be prevented by a sufficient cause from preferring an appeal in time? Soon after the deposit was made she first requested the Court to draw up a final decree which request was turned down and she immediately preferred the appeal. These are relevant considerations while examining a request for condoning the delay in preferring an appeal and on these relevant considerations if the High Court is satisfied simultaneously keeping in view the conduct of the plaintiff since the date of the decree, a case for condoning the delay is made out, and no exception can be taken to it. It is undoubtedly true that in dealing with the question of condoning the delay under Section 5 of the Limitation Act the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay, vide Sitaram Ramcharan v. M.N. Nagarshana (1966)) 12 SCR 875 at 889 :(AIR 1960 SC 260 at pp.265-66). However, it is not possible to lay down precisely as to what facts or matters would constitute 'sufficient cause' under Section 5 of the Limitation Act. But those words should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bona fides is imputable to a party, i.e, the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps will again depend upon the circumstances of a particular case (vide State of West Bengal v. Administrator, Howrah Municipality (1972) 2 SCR 874 :(AIR 1972 SC 749). Discretion is conferred on the Court before which an application for condoning delay is made and if the Court after keeping in new relevant principles exercises its discretion granting relief unless it is shown to be manifestly unjust or perverse, this Court would be loathe to interfere with it."
17. In Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. reported in AIR 1987 SC 1353, the apex court observed as under in para 3 of the judgment :
"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. 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. It is common knowledge that this Court has been making a justifiably liberal approach in matter instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
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.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded that same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The Courts therefore have to informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."
18. Recently, the Division Bench of the Rajasthan High Court has, in Trilokchand Saini v. State and Ors., reported in AIR 2004 Rajasthan 18, considered the question of delay and has observed that the question of delay is a matter of discretion of the court. Length of delay is no matter. It was observed that the acceptability of explanation is only criterion. Explanation not smacking of dilatory strategy - In every case of delay there can be some lapse on the part of litigant concerned. That alone not sufficient to shut down plea of codonation and turn door against litigant. Relevant observations made by the Rajasthan High Court in para 4 and 5 are reproduced as under:
"4. Be that as it may, the State of Rajasthan is praying for dismissal of this application under Section 5 of the Limitation Act. If the applications filed under Section 5 of the Act, 1963 are dismissed it will heavily cost to the State Government.If the Court goes on dismissing the applications under Section 5 of the Act, 1963 the State Government will suffer. Most of the appeals on behalf of the State Government are filed beyond the period of limitation prescribed. The object of fixing time limit under the Act, 1963 is not to deny the rights. The preliminary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the Court in different situation is not because on the expiry of such time a bad cause would transform in a good cause. The rules of limitation are meant to see that parties do not resort to their dilatory tactics to seek their-remedies. Object of providing legal remedy is to repay the damage caused by the reason of legal injury. Condonation of delay is a matter of discretion of the Court. Section 5 of the Act, 1963 does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, accordingly of explanation is the only criteria. sometimes the delay of shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of very long period can be condoned where the explanation thereof is satisfactory. Being the human being, in every case of delay there can be some lapses on the part of the litigation concerned, that alone is not enough to turn down the plea and to shut the door against him. If the explanation does not smack of mala fide or does not put forth as a part of dilatory strategy the Court has to show utmost consideration to the suitor. Only in cases when there is a reasonable ground to think that the delay was occasioned by a party deliberately to gain time, the Court may not accept the explanation. It is difficult to accept what for the litigant will permit the limitation for filing of the appeal should lapse. He will not wait for the expiry of the limitation prescribed for filing of the appeal. Refusal to condone the delay would result in closing the door to a litigant from putting forth his cause. There is no presumption that the delay in approaching the Court is always deliberately. It is no more res integra that the words 'sufficient cause' under Section 5 of the Act, 1963 should receive the liberal construction so as to advance substantial justice. Litigation is not luxury. It is not an amusement. Only under compulsion it is resorted to.
5. Having gone through the contents of the application filed by the appellant under Section 5 of the Limitation Act we are satisfied that the explanation furnished for this delay it is not put forth as a part of dilatory strategy. It is also not the case where the appellant can be blamed that deliberately to gain the time this delay has been made. The conduct of the appellant does not, on the whole, warrant to castigate him as a irresponsible litigant. It is true while condoning the delay which is there in filing of the appeal, the Court ordinarily should not forget the opposite party altogether. But, here the opposite party is State of Rajasthan, a welfare State, seldom to file the appeal within limitation and it is not expected from it to oppose such an application of a suitor. In case the delay in filing of the appeal is condoned, the Sate of Rajsathan, is not likely to be adversely affected. It is a matter of claim made by the appellant for promotion with effect from the date his juniors were promoted with the consequential benefits. In case this claim of the appellant is accepted, he will get some financial benefits in present and in future. If ultimately he succeeds in establishing his claim to the satisfaction of the court he may be given the notional benefits. Otherwise also ordinarily such claims of the employees are accepted it cannot be said that the State will adversely affect to the extent where the appeal has to be dismissed as barred by limitation. During these days when everybody is fully occupied or avocation of life an omission to adopt extra vigilance need not to be used as a ground to depict him as a litigant not aware of his responsibility and to visit him with drastic consequences.
19. Very recently, the Division Bench of this Court has considered the question of delay when the Central Administrative Tribuanl, Ahmedabad Bench, Ahmedabad dismissed the Original Application only on the ground of delay which was filed by the employee. Division Bench of this Court in Mulabhai N. Chavda v. Union of India [Special Civil Application NO. 4076 of 2004 decided on 28.4.2005], observed as under in para 3 to 5 of the said judgment :
"3. Learned counsel for the parties heard, impugned order of CAT perused. True it may be that petitioner approached the General Manager also in addition to the Additional Divisional Railway Manager, to later as per direction of CAT and former, of his own. While approaching the General Manager, bonafide belief may be to seek relief against removal from service from higher authority and not to delay the matter. Assuming, CAT directed him to approach the Additional Divisional Railway Manager, but it did not prohibit him from approaching the General Manager. Approaching General Manager does not amount to lack of bonafides on the part of petitioner. After having received adverse order from Additional Divisional Railway Manager dated 28.12.1994, he may be under the impression that higher authority may decide the revision petition in his favour. The General Manager should have disposed of the revision application within reasonable time instead of keeping the same pending. This delay has impaired further action on order of Additional Divisional Railway Manager dated 28.12.1994. That is how, petitioner approached the CAT late. Application could be filed before CAT for condonation of delay, may be after objection by respondents. Petitioner was being advised by lawyer in his matter. Revision petition to General Manager, Western Railways, was also preferred on the advise of lawyer. He expected the General Manager to decide the application which was not done. Detailed facts are stated in the application supported by affidavit.
4. Ordinarily, a litigant does not stand to benefit for lodging the matter late. Where stakes are high, refusing to condone delay can result in 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. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. It must be grasped that system is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. (see: State of Bihar v. Kameshwar Pratapsingh JT 2000(5) SC 389, Union of India and Ors. v. A. Vasu - (1998)8 SCC 562, State of Haryana v. Chandramani and Ors. - (1996)3 SCC 132).
While considering the matter of delays, Court ought to keep in mind the judgment impugned, extent of the property involved and the stakes of parties, discretion to be exercised to advance substantial justice (See: M.K. Prasad v. P. Arumugam (2001)6 SCC 176).
In Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors. - 2002 AIR SCW 978, the Apex Court has held that "sufficient cause" under section 5, Limitation Act or Order 22, Rule 9, Civil Procedure Code (5 of 1908) should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to party.
5. Adverting to facts of this case, petitioner moved O.A. No. 518 of 1994 seeking relief against removal from service. He is directed to prefer revision application before Additional Divisional Railway Manager. First round of litigation is over by CAT order dated 10.10.1994. The revisional authority decides against him, thereby maintaining order of appellate authority. Second round of litigation starts by filing O.A. No. 608 of 1998. Consistently, he is challenging the action against him. There is no delay in filing the O.A. No. 518 of 1994. Delay happens because he waits for the General Manger to decide his revision petition. Approaching both the authorities, namely, Additional Divisional Railway Manager and General Manager, Western Railways, demonstrates action and not inaction, his bonafides and not lack of bonafides, and anxiety to seek justice from authorities. The General Manager should have decided the revision petition preferred by him one way or the other within reasonable time. Had he done so, petitioner would not have faced the onslaught of opposition by respondents clamoring for dismissal of original application simply on the ground of delay without touching the merits of order of removal from service. Petitioner had been advised by lawyer, fact supported by affidavit, therefore, there is no reason why his statement should not be accepted. He is not going to gain for late filing of original application, rather, he was taking high risk since he had been removed from service by way of punishment. His subsistence is snatched, stigma of removal from service is attached, therefore, his attempts to pursue the matter cannot be regarded unjustified and lacking in bonafides. Sufficient cause for late filing of original application has been clearly established. The CAT ought to have considered all the facts and circumstances of the case, taken pragmatic instead of pedantic view of the matter, allowed the application, and heard the case on merits."
20. While examining the issue of restoration of the matter dismissed for default and while considering the question of interim relief in such matter, this Court is having limited jurisdiction, cannot examine merits of the main matter. Respondent may raise all available contentions in the main special civil application on merits when the special civil application is taken up for final hearing. Such contentions raised by the respondents in their reply on merits of the main matter for opposing restoration and/or interim relief cannot be examined by this Court while considering an application for restoration and interim relief.
21. In State of Nagaland v. Lipok AO and Ors. reported in (2005) 3 SCC 752, the apex court observed as under on this aspect in para 8 to 14:
"8. The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123: AIR 1998 SC 3222] it was held by this court that section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government, which in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.
9. What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. v. Shanti Misra [(1975) 2 SCC 840], this court held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression 'sufficient cause' should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram [ILR (1918) 45 Cal 94 : AIR 1917 PC 156] it was observed that true guide for a court to exercise the discretion under section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari [(1969) 1 SCR 1006 : AIR 1969 SC 575] a Bench of Three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
10. In Concord of India Insurance Co. Ltd. V. Nirmala Devi (1979) 4 SCC 365 : 1979 SCC (Cri) 996 which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan [(1969) 2 SCC 770 this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.
11. In State of Kerala v. E.K. Kuriyipe [1981 Supp SCC 72] it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath [(1982) 3 SCC 366] it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Article 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and the case was remitted for decision on merits.
12. In OP Kathpalia v. Lakhmir Singh a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector Land Acquisition v. Katiji a Bench of two Judges considered the question of limitation in an appeal filed by the State and held that section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression 'sufficient cause' is adequately elastic to enable the court 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. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in hierarchy. This Court reiterated that the expression 'every day's delay' must be explained' does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, common sense, pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Juiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from this perspective, there was sufficient cause for codnoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant. The delay was accordingly condoned.
13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subject to appeal) and the inherited bureaucratic methodology imbued with the note making, file pushing, and passing on the buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant non grata status. The courts, therefore, have to be informed with the spirit and philosolhy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay as accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Prabha v. Ram Prakash Karla [1987 Supp SCC 339] this Court had held that the court should not adopt an injustice oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law.
14. In G. Ramegowda v. Spl. Land Acquisition Officer [(1988) 2 SCC 142] it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression 'sufficient cause' must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect of which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected but what in the ultimate analysis, suffers is the public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts, omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have "a little play at the joints" . Due recognition of these limitations on governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would perhaps be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. The delay of over one year was accordingly condoned."
22. Recently, apex court has, in the decision reported in 2005 (3) SCALE, 77, condoned the delay of 1440 days in filing of the appeal only on the ground that the concerned parties were not aware about the order passed by the court against which they were required to file appeal within the prescribed time. Apex court observed in para 3 of the said judgment that the stand of the appellants before the division bench of the high court was that they came to know about the disposal of the writ petition only in 2002 when respondents No. 2 (9) and 2(b) tried to get khata changed in their names on the basis of purported compromise memo filed before the earned Single Judge on the basis of which writ petition was disposed of. In these circumstances, considering that the parties were not aware about the order in question and not approached the concerned court in time, delay of 1440 days was condoned in filing the writ petition by the concerned party.
23. Considering the law referred to above and looking to the facts of this case, from the beginning, it is the case of the applicant that they were not aware of the order passed by this court on 19.2.2004. It was mentioned by the advocate Ms. Shah for the other side on 12.2.2004 that in place of Mr. P.K. Handa, learned advocate Mr. P.H.Pathak will appear for the petitioner. However, Mr. Pathak could not appear as there was some communication gap between the advocate and the petitioner and therefore the matter was dismissed. It is a fact that the applicants were not aware about the order dated 19.2.2004 till they received information from the respondents having apprehension that their services will be terminated, they immediately approached this court. Therefore, delay is not deliberate or with any ulterior motive. There is no reason for the applicant for not filing the application immediately after knowing of the dismissal of the matter for default. Therefore, when the applicants were not aware of the order of this court dated 19.2.2004, naturally, they could not file the application for restoration of the petition in time. So, delay is bona fide and not deliberate and for such delay, sufficient cause has been pointed out by the petitioner, therefore, according to my opinion, delay in filing of the application, considering the cause assigned by the applicant, is required to be condoned in the interest of justice.
24. Now, the question is whether the interim relief granted by this court on 12.2.1992 is required to be restored while restoring the petition or not. Both the learned advocates have argued on this point. The respondents have pointed out subsequent change or material change in the circumstances. Petitioners have pointed out that there is a question of livelihood of ten employees those who are working since sixteen years with the respondents. It is an admitted fact that the ad.interim order operated against the respondent for about twelve years which was granted on 12.2.1992. It is also an admitted fact that no application was filed for vacation of the ad.interim relief granted by this court. No reply on behalf of the respondent is on record and the workmen are continuing in service because of the interim order passed by this court. Now, with a view to take undue advantage of such situation in view of the vacation of the ad.interim order while dismissing the petition for default by this court, the respondent has come out with a case that they have changed contractor and now the third party interest has been created and, therefore, interim relief should not be continued. In their detailed reply, no averments have been made by the respondent that from 1983-84 till the date of the award 10.10.1991, these ten workmen are working with the respondent and remained in service. This court granted ad.interim relief on 12.2.1992 after four months and yet they remained in service. So, during the intervening period i.e. from the date of the award till the date of ad.interim order 12.2.1992, also, the workmen remained in service though reference was dismissed and no interim order was passed by the tribunal protecting the service. Therefore, considering the fact that ten employees those who are working since sixteen years with the respondents with interim stay of this court for some period, if interim relief is not restored while restoring the petition, then, it will cause great prejudice to the poor workmen for no fault of their own, rather than the respondent. Union is representing espousing their cause. This Court is of the opinion that the poor workmen cannot be made to suffer for the lapse on the part of their advocate and on technicalities. Ultimately, it is a question of livelihood of ten employees, and their families. If technical stand is taken that only petition could be restored and interim relief granted in 1992 cannot be restored, then, it would not be proper on the part of this court which is delivering justice to the parties, therefore, according to my opinion, equity is in favour of the workmen and therefore restoring the petition with interim relief is in the interest of justice and this court cannot pass half hearted order of restoration of the petition without interim relief in the peculiar facts and circumstances of the case and such an approach, would be totally against the basic principles of natural justice, fair play, good conscience and equity. Therefore, according to my opinion, special civil application is required to be restored with ad.interim relief granted by this court on 12.2.1992.
25. In the peculiar facts and circumstances of the case, when apparently there is lapse on the part of the advocate because of his sickness and he is an advocate residing out station, there was communication gap between two advocate and the union, therefore, bona fide lapse, there is no deliberate delay on the part of the petitioner and/or the workmen but they were not aware of the order, therefore, such unawareness prevented them from approaching the court immediately. Conduct of the respondent is such to take undue advantage of the situation, to exploit the situation, otherwise, the ad.interim order remained in operation for twelve years and yet they had not moved any civil application for vacating the ad.interim order. Therefore, I am of the opinion that the delay on the part of the applicant is bona fide and not deliberate.
26. I have considered the decisions referred to hereinabove cited by Mr. Clerk. In the facts of the present case, they are not applicable. Therefore, the submissions made by Mr. Clerk based on the aforesaid decisions are not acceptable and the same are, therefore, rejected.
27. In the result, this application is allowed. Order passed by this court on 19.2.2004 is in SCA No. 711/92 is recalled. Consequently, said SCA No. 711/92 is restored with all reliefs which were granted in the said petition prior to the order dated 19.2.2004 i.e. ad.interim relief granted in the said petition on 12.2.1992 is also restored. Rule is made absolute accordingly. No order as to costs.
28. This order has been passed by this court in presence of the parties and their learned advocates. After the dictation of the order was over and the petition was restored with all other reliefs as above, learned advocate Mr. Clerk requested that the operation of this order may be stayed for a period of two weeks. Thus, he wants something done by this court as become undone, therefore, his request cannot be entertained which is made with a view to make the order futile or ineffective. Therefore, request made by Mr. Clerk for staying operation of this order for two weeks is rejected.