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2013 Supreme(Bom) 1770
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
S.S. SHINDE, J.
Prashant s/o Nago Badgujar
Versus
The State of Maharashtra, through its the Divisional Commissioner, Tribal Development Department & Others
Writ Petition No.2839 of 2013
Decided on: 05-09-2013
Advocate Appeared:
For the Petitioner:Kiran M. Nagarkar, Advocate.
For the Respondents:R1 & R2, T.S. Lodhe' A.G.P., R3 & R4, M.M. Bhokarikar, Advocate.
The court emphasized the need for a liberal approach in condoning delay to ensure substantial justice.
Headnote:
Delay in Filing Appeal - Termination of Services - Indian Limitation Act of 1963, Section 5 - The court allowed the writ petition, quashed the impugned order, and directed the appellate authority to hear and decide the appeal on merits.
Fact of the Case:
The petitioner, a teacher, filed a writ petition challenging the dismissal of his appeal by the Divisional Commissioner on the ground of delay in filing the appeal.
Finding of the Court:
The court found that the delay in filing the appeal was not substantial and the petitioner had not gained any undue advantage by the delay. The court allowed the writ petition, quashed the impugned order, and directed the appellate authority to hear and decide the appeal on merits.
Issues: Delay in filing the appeal, dismissal of the appeal on the ground of limitation.
Ratio Decidendi: The court applied the principles of the Indian Limitation Act of 1963, Section 5, and cited the case of Collector, Land Acquisition Anantnag Vs. Ms. Katiji and ors. to emphasize the need for a liberal approach in condoning delay to ensure substantial justice.
Final Decision: The court allowed the writ petition, quashed the impugned order, and directed the appellate authority to hear and decide the appeal on merits.
Rule. Rule made returnable forthwith.
With consent of the parties heard finally.
2. This writ petition takes exception to the judgment and order dated 18th March, 2012 passed by the Divisional Commissioner, Tribal Development, Nashik Division, Nashik.
3. It is the case of the petitioner that, the petitioner is/was working as Assistant Teacher in Shri. Sant Dnyaneshwar Shikshan Mandal, Bhusawal, Tq. Bhusawal, District Jalgaon, as a Shikshan Sevak since the year 2005. It is further case of the petitioner that, show cause notice was issued on 13th March, 2012 to the petitioner. It appears that, the process of inquiry committee is being continued from 26th June, 2012 to 15th October, 2012 and the inquiry committee had given report on 16th October, 2012. The services of the petitioner, in pursuant to the said report, are terminated vide order dated 20th October, 2012. Being aggrieved, the petitioner filed appeal before the Divisional Commissioner, Tribal Development, Nashik Division, Nashik. By the impugned communication/order dated 18th March, 2013, the said appellate authority dismissed the appeal on the ground of limitation. Hence this writ petition.
4. The learned Counsel appearing for the petitioner invited my attention to the pleadings and grounds taken in the petition and submits that, if the length of delay is perused, there was few days delay in filing the appeal. However the appellate authority has taken very drastic approach and without adjudicating appeal on merits rejected the same on the ground of delay.
5. On the other hand, the learned A.G.P. appearing for the respondent Nos. 1 and 2 and the learned Counsel appearing for the respondent Nos. 3 and 4 vehemently opposed the prayer in the petition. The learned A.G.P. appearing for the respondent Nos. 1 and 2 invited my attention to the affidavit in reply filed on behalf of them and submits that, there is no merit in the petition and same may be rejected.
6. The learned Counsel appearing for the respondent Nos. 3 and 4 also invited my attention to the affidavit in reply filed on behalf of the said respondents and submits that, the petition may be rejected.
7. I have heard the learned Counsel appearing for the parties at length, with their able assistance perused the entire material on record. Upon careful perusal of the averments in the application for condonation of delay which was filed by the petitioner herein, alongwith appeal before the appellate authority, the reasons which are stated in the application should have been accepted by the appellate authority. By delaying in filing the appeal, the petitioner has not gained any undue advantage.
8. In the case of Collector, Land Acquisition Anantnag Vs. Ms. Katiji and ors. Reported in AIR 1987 SC 1353, in paragraph 3, the Apex Court observed:
“3 The legislature has conferred the power to condone delay by enacting S. 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 mattes 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 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 cause would be decided on merits after hearing the parties.
(3) “Every day’s delay must be explained” does not mean that a ped
