Gujarat High Court
Kutch District Panchayat vs Premji V. Dudiya on 1 January, 2000
Equivalent citations: (2000)4GLR830
Author: C.K. Buch
Bench: C.K. Buch
JUDGMENT
Thakker, Actg. C.J.
1. All these applications are filed by State of Gujarat and by Kutch District Panchayat for condonation of delay.
2. Being aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge on 15th August 1997 (public holiday) in SCA No. 427 of 1992 and companion matters,State of Gujarat as well as District Panchayat, Kutch have approached this Court by filing several LPAs. The registry raised an objection that the appeals filed by the appellants were barred by 356 days. The present Civil Applications are,therefore, filed for condonation of delay and to decide the matters on merits. Rule was issued by a Division Bench on August 6, 1998 and was made returnable on November 12, 1998. The matters were thereafter placed for hearing. We have heard Mr. J.M.Thakore, learned Advocate General with Mr. H.P.Hasurkar for the State and Mr. H.S. Munshaw for Kutch District Panchayat for the applicants and Mr.J.R.Nanavati with Mr. A.R.Thakker for the opponents.
3. The case of the applicants was that the petitioners who were in Panchayat service approached this Court by filing petitions under Articles 226 and 227 of the Constitution of India for appropriate writs, orders or directions directing the State of Gujarat, District Panchayats and Gram Panchayats to treat Panchayat employees as State employees and to grant them all benefits extended to State employees, such as, house rent allowance,pension,leave travel concession, encashment of leave, gratuity, benefit of Fourth Pay Commission, appointment on compassionate ground of dependents of the deceased employees, etc.
4. Petitions were admitted by issuing Rule thereon. On August 15,1997, all the petitions were placed before the learned Single Judge who in the light of the decision of the Supreme Court in State of Gujarat vs. R.K.Soni, AIR 1984 SC 161 as also a decision of this Court in Kalol Nagar Panchayat vs. State of Gujarat, SCA No. 1206 of 1978 dated May 3, 1983 (which was affirmed by the Apex Court by dismissing SLPs), allowed all the petitions.
5. In the operative part of the order, the learned Single judge observed:
"In the result, all these special civil applications succeed and the same are allowed . The respondent State is directed in terms in which the writ was issued by the Division Bench of this Court in R.K.Soni's case (supra) so as to extend the benefits relating to equation of posts promotions, fixation of pascals and revision thereof on the basis of the Sarela and the Desai Pay Commissions.The State Government shall carry out these directions at the earliest but in no case later than 31st January 1998. Rule is made absolute accordingly."
6. Being aggrieved by the above judgment and order, LPAs were preferred by the State and the District Panchayat. As stated above, the appeals were barred by about one year. The present civil applications are ,therefore, filed for condonation of delay.
7. In Civil Applications, it was stated by the applicants that after the judgment was delivered by the learned Single Judge, the Government decided to implement the judgment. Necessary instructions were, therefore, issued to the Panchayats. The Panchayat, however, had shown their inability to comply with the orders and the authority also felt that the matters deserve consideration and hence the appeals were filed but there was "some" delay in filing Letters Patent Appeals. Hence, Civil Applications. An affidavit in reply was filed by the petitioners contesting the applications inter alia on the grounds that the matters were finally heard and decided on 15th August, 1997 and there was no ground for condonation of delay in filing Letters Patent Appeals after about one year. It was also contended that strong case on merits is no ground for condonation of delay. As no "sufficient ground" has been made out by the applicants, applications are liable to be dismissed.
8. Further affidavit is filed on behalf of the State Government by Shri K.K.Patel, Deputy Secretary to Government, Panchayat, Rural Housing and Rural Development Department, inter alia, stating therein that there was no negligence much less culpable negligence in approaching this Court. It was stated that the judgment was pronounced by the learned Single Judge on 15th August 1997 on the 50th Anniversary of Independence which was a public holiday. Certified copy was applied on 26th August, 1997 which was ready for delivery on 4th October 1997. Initially, the department issued instructions to the District Development Officer, Kutch, Bhuj to implement the judgment by a letter dated November 28, 1997 as also by another letter dated December 16, 1997. A fax message was also sent on January 21,1998. On January 28, 1998, the District Panchayat sent a fax message to the Government informing about the steps taken by it. He also drew the attention of the State Government that the Gram Panchayats were insisting grant from the Government so as to enable them to disburse the amounts as per the judgment of the High Court. He also conveyed that the Panchayat was warned regarding supersession of the body on that count.On May 8, 1998, another letter was written by the State Government to the District Panchayat informing it that proposal for superseding the Panchayat would be submitted between January and May, 1998. Various meetings were held to consider the situation that the Panchayat were insisting grant from the Government. In May, 1998, the District Panchayat sent a fax message to the State Government mentioning therein that the Gram Panchayats were unable to implement the judgment and the problems required consideration. In the meanwhile, however, another Single Judge of this court on 6th March 1998, took a contrary view upholding the contention of the State Government and dismissing the petition filed by the employees for similar benefits. In the light of the above development, it was decided by the authorities to file Letters Patent Appeals challenging the judgment and order passed by the learned Single Judge. It was stated that the learned Single Judge has not considered an important fact as considered by another Single Judge in the subsequent judgment that all the employees were not regularly appointed and hence, they could not claim the benefits available to the State Government employees. Moreover, liability was not of the State Government. Gram Panchayats had shown their inability to pay the amount. The legal position was also not clear in view of two contradictory decisions of this Court. Meanwhile, contempt petitions were filed by some petitioners who had succeeded. Then Gram Panchayats insisted the State Government to give grant to enable them to make payment. In these circumstances, it was decided to file Letters Patent Appeals and accordingly appeals were filed.
9. In the light of all the facts and circumstances, it could not be said that there was conscious and deliberate delay on the part of the authorities. Delay, therefore, deserves to be condoned.
10.We have heard at sufficient length Mr. J.M.Thakore, learned Advocate General and Mr. Munshaw as also Mr. J.R.Nanavati.
11.The learned Advocate General submitted that there was no deliberate and/or intentional delay on the part of the authorities in approaching this court. In his submission, interpreting the expression "sufficient cause" in the larger interest of justice, delay deserves to be condoned. He also submitted that on the one hand,the State Government cannot be held to be primarily liable for payment of benefits as directed by the learned Single judge to the Panchayat employees, while on the other hand, Panchayats were not in a position to pay the amount. He urged that as on today, the law is not settled, inasmuch as there are two contradictory decisions of two Single Judges of this court and it is in the larger interest to get the law settled by a Division Bench. Moreover, the liability is permanent and perennial and the learned Single Judge , without considering the facts and circumstances in their proper perspective, issued directions, which cannot be said to be legal and valid. In his opinion, the decision of the Supreme Court in R.K.Soni does not apply to the facts of the present case, inasmuch as the law laid down in that case could be invoked only by the Panchayat employees who were State employees allotted to panchayats. He also stated that another learned Single Judge rightly considered the material fact that whether the Panchayat employees would be entitled to all the benefits available to the State employees would depend upon the fact how they were appointed. The learned Single Judge also rightly placed reliance in that connection on a decision of the Supreme Court in Mathuradas Mohanlal Kedia and others as. S.D.Munshaw and others, AIR 1981 SC 53. He, therefore, submitted that these are fit cases wherein delay deserves to be condoned and the matters are deserved to be decided of by a Division Bench.
12.Mr. Nanavati, on the other hand, submitted that no ground whatsoever has been made out by the applicant for condonation of delay. According to him, there are no inconsistent judgments as contended by the applicants. But even if it is assumed for the sake of argument that there are inconsistent judgments and colntradictory views have been taken by two Single Judges,it cannot be said to be a "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963. He also submitted that merits of the matter and strong prima facie case would not amount to "sufficient cause". According to Mr.Nanavati, not only that no sufficient ground has been put forward by the applicants, they had accepted the decision and acquiesced the judgment by directing the District Panchayat and Gram Panchayats to comply with the order by implementing them. It was thereafter not open to to the appellants to file appeals against such order. He also made grievance against the action of the authorities in pressurizing Gram Panchayats for making payment to the petitioners and by threatening them for an action of supersession of the body. According to the counsel, delay of one year cannot be said to be "some" delay. There is total carelessness, negligence and inaction on the part of the authorities and applications are liable to be dismissed.
13.Our attention, in this connection, was invited by the parties to the following decisions:
1. State of Gujarat vs. Sendhuji Thakore; (1999) 1 GLH 513.
2. Ram Kali Devi vs. Manager, Punjab National Bank and others; (1998) 9 SCC 558.
3. Saithilan vs. Kerala State Electricity Board; (1998) 9 SCC 557.
4. N Balakrishnan vs. M.Krishnamurthy; (1998) 7 SCC 123.
5. P.K.Ramchandran vs. State of Kerala and another; (1998) 7 JT 21.
6. Jai Pal and others vs. State of U.T.Chandigarh; (1999) SCC (Cr.) 218.
7. Commandant TSP vs. Eashvramoorthy; (1999) SSC (L & S), 643.
14. Having given thoughtful and anxious consideration to the facts and circumstances of the case, we are of the view that the applications deserve to be allowed and delay deserves to be condoned.
15. From the record, it appears that the learned Single Judge decided several petitions on 15th August 1997. The reliefs prayed by the petitioners were granted in the light of the decision of the Apex Court in R.K.Soni. Reading the decision in R.K.Soni, it is clear that that case related to employees allocated to the Panchayats. The case of the present applicants is that the petitioners in the present petitions were not State employees who were allocated to the Panchayat and hence the ratio laid down in R.K.Soni would not apply. It is also the case of the applicants that another learned Single Judge of this court dismissed the petition filed by similarly situated employees relying on a decision in Mathurdas Mohanlal Kedia. In the submission of the applicants, therefore, as on today, there are two contradictory and inconsistent decisions of two Single Judges of this court. Even if the said circumstance may not be considered as clinching circumstance for entertaining Letters Patent Appeals, in our considered opinion, the point requires to be resolved by a Division Bench of this court. Again, serious complications would ensue if delay is not condoned and LPAs are dismissed only on the ground of delay inasmuch as in respect of certain Gram Panchayats, as per the decision of one Single Judge, their employees can be said to be State employees and are entitled to all benefits as available to the employees of the State Government, whereas, as per another Single Judge, such employees ipso facto do not become State employees in the light of the observations in Mathurdas Mohanlal Kedia and they would not get the benefits on the basis of they being in service of Panchayat. The Panchayat and State Government also would experience difficulties in deciding claims of other Panchayat employees whose case have still not come before the court and would come up for consideration in future or as to whether those employees would be treated as Panchayat employees simpliciter or employees of the State Government. Moreover, the Single Judge before whom such matters would be placed for hearing in future will also be in dilema whether to follow a decision of a Single Judge in the previous matter or in the subsequent one. It is,therefore, in the larger interest ,in our opinion, to set at rest the issue raised in the present appeals.
16. We are further of the view that this cannot be said to be cases wherein negligence,carelessness or inaction can be attributed to the authorities. It is clear that after the judgment was pronounced by the learned Single Judge on 15th August 1997, steps were also taken by them so that the judgment can be implemented. Thus, the authorities tried to comply with the order passed by this court. It is also clear that several meetings were held and the matter was considered at all levels. On the one hand, there were difficulties and financial constraints on the part of Panchayats who were primarily liable to comply with the orders by implementing the judgment by extending the benefits and on the other hand, by the State Government, who cannot be said to be primarily responsible and yet cannot ignore the order passed by the court. In the meanwhile, in a similar matter, the Single Judge of this court took a contrary view, relying upon a decision of the Apex court, after considering the decision impugned in the present matters. If in the light of the above facts and circumstances, a decision was taken by the State and District Panchayat to file appeals and as there is delay, a prayer was made to this court to condone delay, in our opinion, it would constitute "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963 and delay deserves to be condoned.
17. For the foregoing reasons, delay in these applications deserves to be condoned and is accordingly condoned. Rule is made absolute. In the facts and circumstances of the case, there shall be no order as to costs. The office will now place all Letters Patent Appeals before an appropriate court taking such matters.