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HARI RAM GUPTA versus UNION OF INDIA MINISTRY OF DEFENCE, THRU' DEFENCE & OTHERS

High Court of Judicature at Allahabad

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Hari Ram Gupta v. Union Of India Ministry Of Defence, Thru' Defence & Others - WRIT - A No. 14736 of 2003 [2003] RD-AH 82 (7 April 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 38

CIVIL MISC. WRIT PETITION NO 14736 Of 2003

Hari Ram Gupta -----    Petitioner

Versus

Union of India & ors. -----     Respondents.

--------------

Hon'ble Dr. B.S.Chauhan, J.

Hon'ble Ghanshyam Dass, J.

This writ petition has been filed against the order dated 27.2.2003 (Annex. ''12') by which the Central Administrative Tribunal has dismissed the claim petition of the petitioner being time barred.

Facts and circumstances giving rise to this are that petitioner who was working as a labour in Field Gun Factory, Kanpur had proceeded on leave for few days on 20th August, 1983. Petitioner was given a charge sheet on 21.8.1983 for unauthorized absence from duty, and after holding the enquiry the order of removal was passed on 29.6.1984, against which petitioner preferred the appeal which was rejected by the appellate authority on 6.6.1988. Being aggrieved, petitioner preferred O.A. No. 816 of 1991 before the learned Tribunal which was allowed vide order dated 30.9.1991 setting aside the order of removal dated 29.6.1984 as well as the order of dismissal dated 6.6.1988 passed by the appellate authority. However, liberty was given by the Tribunal to initiate proceeding in accordance with law. It has been held by the Tribunal that enquiry has not been held in accordance with law. In pursuance of the order passed by the Tribunal the employee was reinstated and another charge sheet dated 10th July, 1992 was served upon him and after holding the enquiry, order of removal was passed vide order dated 10.7.1992. He preferred the appeal against the said order which was rejected vide order dated 16.7.1993. The claim petition was filed in 2002 which has been dismissed on the ground of delay vide impugned judgment and order dated 27.2.2003. Hence this petition.

Learned counsel for the petitioner has submitted that after the rejection of appeal vide order dated 16.7.1993, petitioner moved representations before the Defence Minister and the Hon'ble Prime Minister on 7.11.1994 and 15.9.1994 respectively. The delay should have been condoned by the learned Tribunal.

However Shri Satya Narain Misra, learned counsel for the petitioner could not explain as under what provision those representations were maintainable before the Hon'ble Defence Minister and the Hon'ble Prime Minister and if no statutory requirement was there to prefer such representations, the question of taking into account those representations for condoning the delay did not arise. More so, representations had also been filed long back and that could not furnish the explanation of inordinate delay.

The Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & ors., AIR 1987 SC 1353, observed  that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be  preferred for the reason  that  other side cannot  claim  to have vested  right in injustice being done because of non-deliberate delay.

The law of limitation is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation).   Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

Time-barred cases should not be entertained by Courts as the rights which  have accrued to others  by reason of delay in approaching  the  Court, cannot be allowed to  be disturbed unless there is a reasonable explanation  for the delay. The vested rights of the parties should not be disrupted at the instance of a person who is a guilty of culpable negligence. (Vide  R.S.  Deodhar Vs. State of Maharashtra,  AIR 1974 SC 259;  and K.R. Mudgal Vs.  R.P.   Singh, AIR 1986 SC 2086).  The  Privy Council in   General  Fire   and  Life  Assurance Corporation  Ltd. Vs. Janmahomed Abdul  Rahim, AIR 1941  PC  6, relied upon the writings of  Mr. Mitra in  Tagore Law Lectures 1932 wherein it has been said   that "a law of limitation and prescription  may  appear to operate harshly  and unjustly  in  a particular case, but if  the  law provides  for a limitation, it is to be  enforced even at the  risk  of  hardship to  a  particular party as the Judge cannot, on applicable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by law."

In N. Balakrishnan Vs. M. Krishnamurthy,  (1998) 7 SCC 133, the Apex Court explained the scope of limitation and condonation of delay, observing as under:-                                                                

"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. 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 for the redress of the legal injury   so suffered. The law of limitation is thus founded on public policy."  

In Smt. Prabha Vs. Ram Parkash Kalra, 1987 (Suppl) SCC 338, the Supreme Court took the view that the Court should   not   adopt   an injustice-oriented approach in rejecting the application for condonation of delay

In Vedabai alias Vaijayanatabai Baburao Patil Vs.Shantaram Baburao Patil & ors, JT 2001 (5) SC 608,  the Apex Court made a distinction in delay and inordinate delay observing as under:-  

"In exercising discretion under Section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other wise will be a relevant factor so the case   calls   for    a more cautious approach...."    

In  P.K. Ramachandran Vs. State of Kerala & Anr., (1997) 7 SCC 556, the Hon'ble Apex Court held as under:-        

"Law of limitation   harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation as equitable   grounds. The   discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained."

In New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, AIR 1976 SC 237 Supreme 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 Inder Singh Vs. Kanshi Ram, 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 Vs. Kuntal Kumari, AIR 1969 SC 575, the Supreme Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section d5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In State of Kerala Vs. 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 Smt Milavi Devi Vs. Dina Nath, (1982) 3SCC 366, it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. The Supreme Court under Art. 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 case was remitted for decision on merits.

In O.P.Kathpalia Vs. Lakhmir Singh, AIR 1984 SC 1744, the Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.

In G. Ramegowda Major Vs. Spl. Land Acquisition Officer, Bangalore, AIR 1988 SC 897 the Supreme Court held as under:-

"If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individual. 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 or 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 assession what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristics of the functioning of the Government. Government decisions are proverbially slow enumbered, 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."

In State of Haryana Vs. Chandramani, 1996 sc 1623 Supreme Court considered large number of its earlier judgments including Binod Bihari Singh Vs. Union of India, (1993) 1 SCC 572; M/S Shakambari & Co. Vs. Union of India, (1993) Supp (1) SCC 487; Warlu Vs. Gangotribai, (1995) Supp (1) SCC 37; Ramlal Motilal & Chhotelal Vs. Rewa Coalfields Ltd., AIR 1962 SC 361, Concord of India Insurance Co. Ltd. Vs. Nirmala Devi, AIR 1979 SC 1666, Lala Mata Din Vs. A. Narayanan, AIR 1970 SC 1953, and held that expression "each day's delay must be explained", does not mean that a pedantic approach should be made and it must be applied in a rational common sense pragmatic manner. Considering the fact that State represents the larger public interest, the Supreme Court held that some latitude must be given to the State when it files an application for condonation of delay, observing as under:-

"It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court- be it by private party or the State- are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an evenhanded manner. When the State is an applicant praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officer/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay- intentional or otherwise- is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and require adoption of pragmatic approach in justice-oriented process."

Thus, while deciding such an application justice oriented approach is required to be adopted.

Justice is the virtue, by which the society/ court/ Tribunal gives to a man what is his due, opposed to injury or wrong.  (Wharton's Law Lexicon, 1976 Reprint   Edn.,  p. 552). Justice is an act of rendering what is right and equitable towards one who has suffered a wrong. Therefore, while tempering   the justice with mercy, the Court has to be very conscious that it has to do justice in exact conformity to some obligatory law for the reason that human actions are found to be just or unjust as they are in conformity with or in opposition to the law.  In Delhi Administration  Vs. Gurdip Singh  Uban  & ors., (2000)  7  SCC 296, the Hon'ble Apex  Court observed as under:-                              

"The words 'justice' and 'injustice', in our view,. are sometimes loosely  used and  have different meanings to different persons,  particulartly to those  arrayed on  opposite sides.....  Justice  Cardozo said,  'The  Web is tangled and  obscure, shot  through with a multitude of  shades and  colours,  the skeins  irregular  and broken.   Many hues that seems to be simple, are found, any when analysed, to be complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at   different   times.  Attempts to objectify its standards or  even   to describe   them,   have    never   wholly succeeded."   (Selected     Writings   of Cardozo, pp 223-24;  Fallon Publications, 1947)."  

       Therefore, the Court must consider all pros and cons and inconvenience caused to the other side as well as to the Courts which are over-burdened with this kind of litigations for the fault of the litigants not taking proper care in due time.    

Thus in view of the above as the petitioner has filed the claim petition after inordinate delay and no satisfactory explanation had been furnished, no fault can be found with the order impugned and the claim petition has rightly been rejected.

Petition is devoid of any merit and is accordingly dismissed.

7.4.2003

AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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