Karnataka High Court
Mrs Janet Nancy Pereiera vs The President on 16 December, 2021
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.1714/2021 (S-RES)
BETWEEN:
MRS. JANET NANCY PEREIERA
W/O SRI J W PEREIERA
AGED ABOUT 55 YEARS
NOW RESIDING AT NO.39
4TH CROSS, KAVERI LAYOUT
HARLUR ROAD, KUDLU
BENGALURU-560 068.
...PETITIONER
(BY SRI M SUBRAMANYA BHAT, ADV.)
AND:
1. THE PRESIDENT
THE MANAGEMENT COMMITTEE
CHRIST SCHOOL
BENGALURU-560029.
2. THE PRINCIPAL
CHRIST SCHOOL
D.R.C. POST
BENGALURU-560029.
3. MR.JOSE VERGHESE
ENQUIRY OFFICER
CHRIST SCHOOL
2
D.R.C.POST
BENGALURU-560029.
...RESPONDENTS
(BY SRI MANJUNATHA PRASANN, ADV. FOR C/R2
R1 & R3 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
JUDGMENT AND DECREE DATED 05.02.2020 PASSED IN M.A.
(EAT) NO.5/2013 ON THE FILE OF THE III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-25) VIDE ANNX-R AS THE
SAME SUFFERS FROM ERRORS WHICH ARE APPARENT ON THE
FACE OF THE RECORDS AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner, a dismissed teacher of second respondent-School is before this Court under Article 226 of the Constitution of India, questioning the correctness and legality of the judgment dated 05.02.2020 in M.A. (EAT) No.5/2013 on the file of the III Additional City Civil and Sessions Judge, Bengaluru, wherein the appeal filed by the petitioner is dismissed on the ground of delay and also holding that the enquiry held by the Management is fair and proper.
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2. Heard learned counsel Sri.Subramanya Bhat for the petitioner and learned counsel Sri.Manjunatha Prasanna for respondent No.2. Perused the writ petition papers.
3. Learned counsel for the petitioner submits that the petitioner was appointed as Assistant Teacher in the second respondent-School on adhoc basis w.e.f. 01.06.1993, thereafter her services were confirmed as a regular Assistant Teacher vide order dated 01.06.1995. While the petitioner was working as such, the petitioner was issued with a memo dated 17.02.2010 (Annexure-B) making certain allegations to which, the petitioner replied on 02.03.2010. Thereafter, the petitioner was kept under suspension by order dated 04.03.2010. The petitioner was issued with letter dated 04.05.2010 (Annexure-C) enclosing charge sheet along with the explanation to the charges, list of witnesses and documents relied upon in support of the charge memo. The petitioner replied to the charge memo on 14.05.2010. The respondents No.1 and 2 not being satisfied with the 4 explanation offered by the petitioner, appointed the 3rd respondent as Enquiry Officer to enquire into the charges leveled against the petitioner under Annexure-C. The Enquiry Officer conducted enquiry on 28.05.2010 and on the same day, examined four witnesses on behalf of the Management as P.W.1 to P.W.4 and held charge Nos.1 and 4 are conclusively proved against the petitioner and recommended major penalty. The respondent-Management issued second show-cause notice along with enquiry report to which, the petitioner replied on 13.04.2011. The respondents No.1 and 2 by order dated 18.04.2011 (Annexure-K) imposed punishment of dismissal against the petitioner.
4. The petitioner being aggrieved by the order of dismissal dated 18.04.2011 filed a suit in O.S.No.5163/2011 on 19.07.2011 before the City Civil Judge, Bengaluru. Later realizing that the suit is not maintainable, the petitioner said to have withdrawn the suit on 15.02.2012 and thereafter filed an appeal before the Educational Appellate Tribunal (for short 5 "Tribunal") on 27.04.2013. Before the Tribunal, the respondent-Management examined one witness as R.W.1 and on behalf of the petitioner, two witnesses were examined as P.W.1 and P.W.2 apart from marking the documents as Ex.P1 to Ex.P58 and respondent-Management exhibited the documents as Ex.R1 to Ex.R24. The Tribunal, by impugned order dated 05.02.2020 dismissed the appeal of the petitioner on two counts, holding that the enquiry is fair and proper and on the question of delay.
5. Learned counsel Sri.Subramanya Bhat appearing for the petitioner submits that the Tribunal committed manifest error in dismissing the appeal on the ground of delay without appreciating the evidence of P.W.2 and submits that the delay in approaching the Tribunal was properly explained, which the Tribunal failed to appreciate. Learned counsel would submit that the petitioner was dismissed from service on 18.04.2011 and on a wrong legal advise, the petitioner filed O.S.No.5163/2011 before the City Civil Court. Later, on 6 realizing that the suit would not be maintainable, the petitioner withdrew the same by filing a memo on 15.02.2012. Since, the counsel appearing on behalf of the petitioner was unwell and had undergone bypass surgery, the papers relating to the case were not handed over to the petitioner in time. The evidence of P.W.2, the counsel who appeared for the petitioner in the suit makes it clear that after undergoing bypass surgery and after recovery, he handed over the case papers to the petitioner on 16.03.2013. Thereafter, the appeal was immediately filed on 27.04.2013. Thus, he submits that the delay is properly explained, but the Tribunal without taking note of the evidence of P.W.2 proceeded to dismiss the appeal on the ground of delay. Learned counsel would rely upon the decision of this Court in W.P.No.46435/2017 disposed of on 4th November 2020 to contend that there is sufficient cause to condone the delay and the Tribunal failed to exercise its jurisdiction. It is his submission that where there is no gross negligence or deliberate intention or lack of bonafides, the Tribunal ought 7 to have condoned the delay. Further it is submitted that in the case on hand, there was no negligence or lack of bonafide on the part of the petitioner since she was pursuing her remedy before a wrong forum. Thus, he prays for setting aside the finding recorded by the Tribunal on the question of delay.
6. Learned counsel Sri.Subramanya Bhat further submits that the Tribunal also committed a grave error in recording a finding that the enquiry conducted by the respondent- Management is fair and proper. It is his submission that the 3rd respondent-Enquiry Officer failed to conduct enquiry by following the procedure known to law. The Enquiry Officer instead of asking the Management to examine its witnesses at the first instance to prove the charge, allowed the petitioner- delinquent teacher to depose first. It is his submission that when the respondent-Management alleges and imputes certain charges against the petitioner, it is for the Management to prove the charge against the petitioner. The 8 burden cannot be shifted on the delinquent official to disprove the charge. In that regard, learned counsel for the petitioner places reliance on a decision reported in (2008)8 SCC 236 in the case of STATE OF UTTARANCHAL AND OTHERS v/s KHARAK SINGH. Learned counsel would submit that the Tribunal failed to examine the enquiry report while recording the finding that the enquiry held by the Management is fair and proper. Moreover, learned counsel submits that one of the charges against the petitioner is that when the Principal called her to correct her behavior, the petitioner misbehaved with the authorities and threatened, it was necessary to examine the then Principal, which the respondent-Management failed to do so.
7. Learned counsel for the petitioner also submits that the witnesses examined on behalf of the Management i.e., R.W.1 Mr.Anil P.M. is not competent to depose before the Tribunal since he was not in service as on the date of enquiry and he was appointed only during 2015. The said witness is not 9 acquainted with the enquiry proceedings and he has not deposed with regard to the manner of conducting the enquiry by the 3rd respondent-Enquiry Officer. Learned counsel points out several infirmities in the enquiry proceedings including non-furnishing of copies of complaint and report of the Enquiry Officer recommending major punishment against the petitioner. Learned counsel for the petitioner referring to decision of this Court in THE PRESIDENT, GOLDEN VALLEY EDUCATION TRUST, OORGAUM, KOLAR GOLD FIELDS v/s DISTRICT JUDGE AND EDUCATIONAL APPELLATE TRIBUNAL, KOLAR AND OTHERS reported in ILR 1979 KAR 526 submits that the Tribunal failed to follow the principles laid down therein. Learned counsel particularly invites attention of this Court to paragraph 12 in the said judgment wherein the procedure required to be followed is prescribed. Further, the learned counsel would point out that the enquiry was held between 4.15 p.m. to 6.00 p.m. on 28.05.2010, during the said period, four witnesses were examined on behalf of the Management and no opportunity to examine the 10 witnesses on behalf of the petitioner was offered. When several defects in the enquiry conducted by the 3rd respondent is pointed out, the Tribunal ought to have recorded a finding that the enquiry is not fair and proper and ought to have directed the respondent-Management to prove the charges against the petitioner. Thus, he prays for allowing the writ petition and to remand the appeal to the Educational Appellate Tribunal for fresh disposal by condoning the delay.
8. Learned counsel Sri.Manjunath Prasanna appearing on behalf of respondents No.1 and 2-Management submits that there is no infirmity in the enquiry conducted by the 3rd respondent and he justifies the judgment of the Tribunal. Learned counsel would contend that there was inordinate delay of more than 2 years 9 months in approaching the Tribunal from the date of order of dismissal and further he submits that there is delay of nearly an year after the date of withdrawing the suit. According to the learned counsel for 11 the respondent-Management, delay is not properly explained. The petitioner ought to have explained each day's delay in approaching the Tribunal. As the delay is not properly explained, the Tribunal rightly rejected the appeal of the petitioner on the ground of delay. He submits that the evidence of P.W.2 is not inspiring. It is his submission that P.W.2 states that he had undergone bypass surgery in March 2012 and he could hand over the case papers only in March 2013, which cannot be believed. Thus, he prays for maintaining the finding of the Tribunal with regard to delay.
9. Insofar as finding of the Tribunal with regard to the enquiry held by the Management as fair and proper, he submits that the Enquiry Officer conducted the enquiry after affording ample opportunity to the petitioner. He invites attention of this Court to the enquiry report and submits that at the request of the petitioner/delinquent Teacher, the Enquiry officer permitted the petitioner to depose first. There is no infirmity in following the said procedure. Further, the 12 learned counsel also points out from the enquiry report that the petitioner herself stated that she does not want to cross- examine the witnesses examined on behalf of the Management i.e., P.W.1 to P.W.4. When the petitioner herself has refused to cross-examine the Management witnesses, it is not open for the petitioner to contend that the enquiry held by the 3rd respondent is not fair and proper. Thus, he prays for dismissal of the writ petition.
10. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the following points would arise for consideration:
(i) Whether the Tribunal is justified in recording a finding that the enquiry is held to be fair and proper?
(ii) Whether the Tribunal is justified in dismissing the appeal on the ground of delay?13
11. Answer to both the points would be in the negative for the following reasons:
Reg: Point No.1:
The procedure required to be followed by the Educational Appellate Tribunal constituted under the Karnataka Education Act, 1983 (for short "1983 Act") when an appeal is presented before the Tribunal by a Teacher or an employee of the Educational Institution, is settled and explained in a decision reported in GOLDEN VALLEY EDUCATIONAL TRUST (supra). Paragraph 12 of the judgment summarises the procedure required to be followed by the Tribunal which is as follows:
"12. (1) Where Management has not held the Enquiry or does not claim the benefit of the enquiry even if it had been held:
If the Management had imposed the penalty without holding the enquiry or even if any enquiry had been held, the management gives up the benefit of such enquiry and offers to prove the charges, the Management can offer to adduce evidence in support of the charges on the basis of which the penalty was imposed, before the Tribunal, and the employee can 14 adduce defence evidence and the Tribunal has the power and jurisdiction to come to its own conclusion on the appreciation of the evidence so adduced.
(2) Where the enquiry held by the Management is found to be defective:
If the Management claim to have held a valid enquiry and the employee challenges the validity of the enquiry, the Tribunal should, in the first instance, decide as a preliminary issue, the validity of the domestic enquiry. If it is found to be violative of rules, if any, regulating the proceedings or found to be violative of the principles of natural justice, the enquiry should be set aside. Thereafter the Tribunal should proceed to record evidence if offered to be adduced by the Management in support of the charges leveled against the employee, and the defence evidence, if any, adduced by the employee and to record its own findings on the charges.
(3) When the enquiry held by the Management is found valid:
In cases where the domestic enquiry held by the Management is found to be valid, the procedure that has to be followed thereafter is-
(i) The Tribunal can proceed to reappreciate the evidence recorded in the domestic enquiry and can 15 come to its own conclusion on the charges leveled against the employee; or
(ii) The Tribunal considers that it is necessary to record further evidence, when either party offers to adduce evidence, the Tribunal should proceed to record the additional evidence and has the power and jurisdiction to record its independent findings on the charges taking into account the evidence adduced in the domestic enquiry as also the additional evidence adduced before it, by the parties.
Thus under all circumstances, the final satisfaction about the proof of the charges leveled against the concerned employee is that of the Tribunal and if the Tribunal comes to the conclusion that the Management failed to prove the charges on the basis of which the penalty was imposed, on the concerned employee, the Tribunal has to set aside the order imposing the penalty made by the Management.
(4) Power to reduce penalty even if charges are proved:
After the Tribunal records its findings even in cases where the Tribunal comes to the conclusion that all or any of the charges leveled against an employee are established, section 10(4) of the Act specifically authorizes the Tribunal to examine as to whether the 16 penalty imposed by the Management, is proportionate to the gravity of the charges or harsh and excessive. If the Tribunal is of the opinion that the penalty imposed is excessive, it is empowered to substitute any lesser penalty which in its opinion is commensurate to the gravity of the charges found proved.
12. The Tribunal is required to first decide the question as to whether the enquiry conducted by the second respondent-
Management is fair and proper. In the case on hand, the Tribunal failed to appreciate or failed to examine the procedure followed by the 3rd respondent-Enquiry Officer in conducting the enquiry against the petitioner. The enquiry report itself makes it clear that the Enquiry Officer, at the request of delinquent Teacher permitted her to depose first, which the Enquiry Officer could not have done. When the respondent-Management alleges misconduct against the petitioner, burden is on the respondent-Management to prove the charge or allegation against the petitioner. Burden of disproving the charge cannot be shifted to the shoulders of delinquent official or petitioner herein. It is pertinent to note 17 here itself that out of 4 charges alleged against the petitioner, charge Nos.1 and 4 are proved and charges No.2 and 3 are not proved as per the report of the Enquiry officer. Proved charge No.1 relates to complaint of behavior of the petitioner towards children alleged as cruel and tortuous. 4th charge against the petitioner related to misbehaving and threatening the Principal when the Principal called the petitioner to correct her behavior. To prove the charge of complaint of the parents with regard to misbehavior of the petitioner towards Children, none of the complainant is examined to prove the charge. Witnesses P.W.1 to P.W.4 are all Management witnesses who deposed before the Enquiry Officer with regard to incidents of indiscipline by the delinquent Teacher. With regard to charge No.4 which is with regard to misbehavior with the Principal and threatening, when the Principal called the petitioner to correct her behavior, it was only the Principal who could have deposed as to whether the petitioner misbehaved with the Principal and whether the petitioner threatened the Principal. The Principal with whom the 18 petitioner is said to have misbehaved or threatened is not examined before the Enquiry officer. R.W.1 examined before the Tribunal is a Teacher who is appointed subsequent to the enquiry and dismissal of the petitioner and he would not be a competent witness to depose with regard to enquiry and the proceedings conducted before the Enquiry officer. Further, the Enquiry Officer recommended for major penalty which he could not have. The role of Enquiry Officer is to record findings on charges and it is for the disciplinary authority or appointing authority to impose appropriate punishment based on the findings of the Enquiry Officer.
13. Learned counsel for the petitioner relied upon a decision of STATE OF UTTARANCHAL (supra) to contend that the Enquiry Officer has no role in suggesting or awarding punishment and it is for the Disciplinary Authority to impose appropriate punishment and also to support his contention that in an enquiry, the Department should take steps to lead evidence against the workman/delinquent employee and give 19 an opportunity to examine the witnesses of the employee. Relevant paragraphs 14 and 15 reads as follows:
14. In regard to the question whether an enquiry officer can indicate the proposed punishment in his report, this Court, in a series of decisions has pointed out that it is for the punishing/disciplinary authority to impose appropriate punishment and enquiry officer has no role in awarding punishment. It is useful to refer to the decision of this Court in A.N.D'Silva vs. Union of India wherein it was held(AIR p.1134,para 6 )
6. "In the communication addressed by the enquiry officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges could not properly be set out. The question of imposing punishment can only arise after enquiry is made and the report of the enquiry officer is received. It is for the punishing authority to propose the punishment and not for the enquiring authority."
15) From the above decisions, the following principles would emerge:
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i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer.
If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to 21 supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.
14. For the reasons recorded above, I am of the view that the finding of the Tribunal that enquiry held by respondents No.1 and 2 as fair and proper requires to be set aside with a direction to provide an opportunity to the Management to prove the charge against the petitioner by adducing evidence.
15. Reg: Point No.2:
The Tribunal dismissed the appeal of the petitioner holding that there has been inordinate delay in filing the appeal and that the petitioner has not explained sufficient cause to condone the delay. The said finding of the Tribunal that the petitioner has not shown sufficient cause to condone the delay is the result of total non-application of mind by the Tribunal as well as failure of the Tribunal to exercise its discretionary jurisdiction judiciously in the matter of condonation of delay.22
16. It is true that there is delay of more than two years in approaching the Tribunal under Section 94 of 1983 Act. The petitioner had filed an application under Section 5 of the Limitation Act along with the appeal, praying to condone the delay of 364 days in filing the appeal. In the affidavit accompanying the application, the petitioner had explained the cause for delay in filing the appeal before the Tribunal. During the course of the evidence, the petitioner examined P.W.2, the counsel who had appeared for the petitioner in the suit filed by the petitioner. It is pertinent to mention here itself that the petitioner was dismissed from service on 18.04.2011. On a wrong legal advise, the petitioner filed suit in O.S.No.5163/2011 on 19.07.2011. On realizing that the suit would not be maintainable, the petitioner withdrew the said suit on 15.02.2012. Thereafter, the petitioner filed an appeal before the Tribunal on 27.04.2013. It is clear from the records that, from the date of dismissal i.e., on 18.04.2011, within three months, the petitioner filed the suit before the City Civil Court at Bangalore, hence it could be said that the 23 petitioner was prosecuting her remedy before a wrong forum till the suit was withdrawn on 15.12.2012. Thereafter, the petitioner filed appeal on 27.04.2013 and delay from 15.02.2012 to 27.04.2013 is explained by P.W.2/counsel who appeared for the petitioner in the suit. From a perusal of evidence of P.W.2 which is placed on record as Annexure-L along with writ petition papers, it is seen that P.W.2 stated that he suffered from heart attack during March 2012 and he was admitted to Hospital. Thereafter, on the advise of Doctors, he underwent bypass surgery at Narayana Hrudayalaya and to evidence that he had undergone bypass surgery, Ex.P52 Medical Certificate is placed on record which is not disputed by respondents No.1 and 2. Further, he deposed that, on 22.03.2012 he applied for certified copy of the order sheet in O.S.No.5163/2011, which is received on 31.03.2012. It is further stated that immediately thereafter on 07.04.2012 he was admitted to Narayana Hrudayalaya hospital at Bangalore for heart bypass surgery and he was discharged only on 16.04.2012. Further, P.W.2 has stated 24 that due to his ailment, he could not get in touch with the petitioner and he could hand over the case papers to the petitioner only on 16.03.2013. On receipt of the case papers, the petitioner is said to have filed an appeal before the Tribunal on 27.04.2013. Learned counsel for the respondents points out that P.W.2 did not represent the petitioner in O.S.No.5163/2011 and it is one Sri.P.S.Ranganathan who had appeared for the petitioner in the said suit. A perusal of the cross-examination of P.W.2 it reveals that Ex.P51 certified copy of the order sheet in O.S.No.5163/011 as well as Ex.P56 certified copy of vakalath of P.W.2 was placed on record. P.W.2 has categorically stated that Sri.P.S.Ranganathan, advocate is his senior and he had also signed the vakalath along with his senior.
17. The condonation of delay is the discretion of the Court. Sufficient cause depends upon the facts of each case. Sufficient cause means adequate cause. The party who seeks condonation of delay shall demonstrate before the Court that 25 there was no negligence nor lack of bonafide in prosecuting the case. Sufficient cause is to be given liberal interpretation to ensure substantial justice. This Court, in MR.SURESH H.L. (supra) in W.P.No.46453/2017 taking note of the decisions of the Hon'ble Apex Court in the matter of condonation of delay at paragraph 8 and 9 held as follows:
"8. Condonation of delay is discretion of the Court. Sufficient cause depends on the facts of each case. Sufficient cause means adequate cause. The party who seeks conduction of delay shall demonstrate that there was no negligence, or there was no inactiveness on his part. The reasons for condonation of delay must be bonafide and reasonable. Sufficient case is to be given liberal interpretation to ensure that substantial justice is done. The explanation offered by the petitioner for condoning the delay in the present case is that initially he approached two Advocates who refused to file the appeal. The petitioner in his evidence has stated that initially he approached an Advocate, at Uppinangady, who practiced on criminal side, but had kept the file with him for two months and then 26 advised the petitioner to approach an Advocate who practices in service or labour matters. The petitioner has also examined the Advocate, who had filed the appeal. The explanation offered by the petitioner appears to be reasonable. An order of dismissal from service will have far reaching civil consequences on the petitioner, as the order of dismissal virtually amounts to deprivation of right to livelihood. In that circumstances, the Tribunal has failed to exercise jurisdiction vested in it. The Hon'ble Apex Court in the case of M/s. Katiji and others cited supra while considering Section 5 of the Limitation Act has held that "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. Further the Hon'ble Apex Court has observed that while condoning the delay liberal approach is to be adopted keeping in mind the following principles:-
(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 which when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 27 (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 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 malafides. 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." Similar is the view expressed by the Hon'ble Apex Court in G. RAME GOWDA AND OTHERS Vs. SPECIAL LAND ACQUISITION OFFICER, BANGALORE, reported in (1988) 2 SCC 142 cited supra. Further it is held that each case will have to be considered on the parameters of its own special cause and sufficient cause must receive liberal consideration so as to advance substantial justice. Generally delay in preferring the appeals is required to be considered in the interest of justice, 28 where no gross negligence or deliberate inaction or lack of bonafides, imputed to a person, who seeks condonation of delay.
9. The Hon'ble Apex Court in N. BALAKRISHNAN Vs. M. KRISHNAMURTHY reported in (1998) 7 SCC 123 while considering the condonation of delay where there was negligence on the part of the Advocate, who was entrusted with the case and thereby there was delay in filing the application to set aside the ex-parte decree, has held at paras 9 to 13 as follows :-
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is not matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once, the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown 29 for the delay afresh and it is open to such superior court to come to its own finding when untrammeled by the conclusion of the lower court.
10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium. Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do no resort to dilatory tactics but seek their remedy promptly.
The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 30
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is not presumption that delay in approaching the court is always deliberate. This court has held that the words "sufficient cause" under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari and State of W.B v. Administrator Howrah Municipality.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."
In the above decision the Hon'ble Apex Court has held that there could be lapses on the part of the litigant, but that alone shall not be the reason to turn down his plea. Refusal to condone the delay would shut the doors for such a person from putting 31 forth his grievance. The primary function of the Court is to advance justice and not to destroy the rights of the parties.
18. In the case on hand, the cause stated or explained by the petitioner for delay in approaching the Tribunal constitutes sufficient cause under Section 5 of the Limitation Act. The order of dismissal from service would have far reaching civil consequences on the petitioner. In that, it deprives the livelihood of the petitioner. The case stated by the petitioner that she was before a wrong forum between July 2011 and February 2012 and thereafter, due to ill-health of the learned counsel appearing for the petitioner in the suit, the petitioner was prevented from approaching the Tribunal which is satisfactorily explained. The cause shown by the petitioner constitutes sufficient cause and the Tribunal failed to exercise its discretion judiciously while considering the question of delay. For the reasons stated above, the finding of the Tribunal on the question of delay is set aside and the 32 delay in approaching the Tribunal by the petitioner is condoned.
19. The appeal is allowed in part, with the following directions:
(a) The delay in filing the appeal in MA(EAT) No.5/2013 before the III Additional City Civil and Sessions Judge and Educational Appellate Tribunal, Bangalore City is condoned. The appeal is remitted back to the Educational Appellate Tribunal to afford an opportunity to the Management to prove the charge alleged against the petitioner by adducing evidence and also provide an opportunity to the respondents to cross-examine as well as examine the witnesses, if any.
The procedure laid down by this Court in THE PRESIDENT, GOLDEN VALLEY 33 EDUCATIONAL TRUST (supra) shall be followed by the Tribunal, while deciding the appeal.
Sd/-
JUDGE mpk/-* CT:bms