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High Court Of Calcutta
A. M. BHATTACHARJEE, S. K. MUKHERJEE
STATE OF WEST BENGAL, REPRESENTED BY THE SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF WEST BENGAL - Appellant
Versus
WEST BENGAL JUDICIAL SERVICE ASSOCIATION - Respondent
F. M. A. T. 1833 Of 1989
Decided On : 04/23/1990
LIMITATION ACT, 1963 - SECTION 5 - CONDONATION OF DELAY - EXTENSION OF TIME - GOVERNMENT LITIGATION - SUFFICIENT CAUSE - DELAY DUE TO IN-FIGHTING BETWEEN DEPARTMENTS - OFFICERS OF JUDICIAL DEPARTMENT INTERESTED IN OUTCOME OF WRIT PETITION - FAILURE TO EFFECTIVELY CONTEST PETITION - DELAY IN COMMUNICATING IMPUGNED ORDER TO FINANCE DEPARTMENT - LIBERAL APPROACH TO CONDONATION OF DELAY IN GOVERNMENT CASES - INTERESTS OF JUSTICE AND MERITS OF CASE TO BE CONSIDERED - APPLICATION FOR CONDONATION ALLOWED.
Fact of the Case:
The Appellant State, represented by the Secretary, Department of Finance, filed an appeal against a judgment in a writ petition challenging the fixation of a later date for the grant of certain financial benefits to members of the West Bengal Higher Judicial Services compared to the date fixed for members of the Indian Administrative Service. The delay in filing the appeal was 49 days beyond the statutory period of limitation. The Judicial Department, which had initially recommended the grant of the benefits to the writ petitioners, was entrusted with the responsibility of contesting the writ petition on behalf of the State. However, the Judicial Department did not effectively contest the petition and, in fact, supported the petitioners' case. The Finance Department, which was opposed to the grant of the benefits, did not have an adequate opportunity to present its case before the trial judge.
Finding of the Court:
The court found that the delay in filing the appeal was sufficiently explained by the sequence of events, including the in-fighting between the Judicial Department and the Finance Department, the interest of the officers of the Judicial Department in the outcome of the writ petition, the failure of the Judicial Department to effectively contest the petition, and the delay in communicating the impugned order to the Finance Department. The court also noted that the financial liability involved was considerable and that the officers belonging to the West Bengal Higher Judicial Service, who would be recipients of the disputed benefits, included those who were in control of the Judicial Department.
Issues: 1. Whether the delay in filing the appeal was sufficiently explained to warrant condonation under Section 5 of the Limitation Act, 1963? 2. Whether the in-fighting between the Judicial Department and the Finance Department, the interest of the officers of the Judicial Department in the outcome of the writ petition, the failure of the Judicial Department to effectively contest the petition, and the delay in communicating the impugned order to the Finance Department constituted sufficient cause for condonation of delay? 3. Whether the liberal approach to condonation of delay in government cases, as advocated by the Supreme Court, should be applied in this case?
Ratio Decidendi: The court held that the principles laid down by the Supreme Court in different decisions, particularly the observation that "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," justified the conclusion that the application under Section 5 of the Limitation Act should be allowed. The court considered the special factual features of the case, including the in-fighting between the departments, the interest of the Judicial Department officers in the outcome of the writ petition, and the delay in communicating the impugned order to the Finance Department, and found that these factors sufficiently explained the delay in filing the appeal.
Final Decision: The court allowed the application for condonation of delay and admitted the appeal for hearing on merits.
( 1 ) THE appeal, in respect of which the present application for extension of time and condonation of delay has been filled under section 55 of the Limitation Act, 1963, has been preferred by the Appellant State and seek to assail the judgement of a learned single judges on a petition under Article 226 presented by the Respondents No. 1 to No. 6 against the appellant State, as the Respondent No. 1, then being represented by the Secretary, Judicial Department (who is now Respondent No. 7 before us) and also the Secretary, Department of Finance as the Respondent No. 2, who in this appeal is representing the appellant State now before us. The writ petitioner No. 1 in the Court below, no Respondent No. 1 before us is the West Bengal Judicial Service Association, an Association of the Judicial Officers in this State and the other co-petitioners, now Respondents No. 2 to No. 6 are officers of the State Higher Judicial Service and members of the above named Association while, as already noted, the Secretary, Judicial Department, who represented the State in the Court below, has now been arranged as Respondent No. 7. The fact that the appellant State, who as the Respondent No. 1 in the Court below was represented by the Secretary, Judicial Department, has had now to decide to prefer this appeal before us through the Secretary, Finance Department, relegating its earlier representative, the Secretary of its Judicial Department, to the position of a co-respondent, should go a long way to demonstrate that these two Departments are very much at cross-purposes. In fact, as would appear hereafter, even if these two Departments are not branded to be at logger-heads and to have adopted a somewhat bellicose attitude of zealous (if not jealous) combatants, it is manifest from the records that they are holding diametrically opposite views giving rise to unfortunate departmental in-fighting, which, to say the least, cannot but be detrimental to the smooth, healthy and orderly running of the Government.
( 2 ) THE dispute, shorn of details not necessary for our present purpose, is whether "several financial benefits as has been allowed to the members of the Indian Administrative Service" ought to have been allowed to the members of the West Bengal Higher Judicial Services also with effect from the same date on and from which those have been allowed to the former. The State Government decided to grant the benefits to the former from an earlier date, but to the latter from a later date. The West Bengal Judicial Service Association and its members, the respondents here, challenged such fixation of a later date in the writ proceeding and the challenge having succeeded in the Court below, the State has come up in appeal but the same having been preferred after the expiry of the period of limitation prescribed therefore, the present application has been filed for extension of time and condonation of delay.
( 3 ) IT has not been, as it obviously cannot be, disputed that the success of the Writ Petition was to go, and has accordingly gone, to the benefit of all the officers of the Higher Judicial Service including the Judicial Secretary and other high-ranking officers of the Judicial Department of the State, who took upon themselves the charge of conducting and contesting the Writ Petition on behalf of the State. As would appear from paragraph 1 of this application, the Judicial Secretary sent the relevant file to the Legal Remembrancer, another high-ranking Judicial Officer, "for engaging an Advocate to represent this Department". It would further appear that the Judicial Secretary appears to have regretted that though "almost all the prayers in the Writ Petition were recommended by this Department", yet "either for the refusal or delay in taking decision on the part of the Finance Department, the benefit could not be extended to the WBHJS fully at per with the IAS". The final fiat of the Judicial Secretary was that "we may swea
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