Point of Law: In a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

ORDER :

A.J.DESAI, J.

1. By way of present application under Section 5 of the Limitation Act, 1963 the applicant-State authorities have requested to condone delay of 561 days in filing Letters Patent Appeal under Clause 15 of the Letters Patent Act challenging oral judgment dated 26.9.2017 passed in Special Civil Application No.4999 of 2010, by which learned Single Judge has quashed and set aside the penalty imposed by the department, retiring the present respondent compulsorily, and further directed to treat him as if he has voluntarily retired from service with effect from 26.9.2007, (that is the date from which he was made to compulsorily retire by the department itself).

2. In response to the notice issued by this Court, the respondent has appeared through learned advocate Mr.K.B.Pujara and has filed affidavit-in-reply opposing this application.

3. Mr.J.K.Shah, learned AGP would submit that there are sufficient reasons, which were beyond control of government authorities, due to which delay has occurred and, therefore, this application be allowed. He would submit that, at initial stage, opinion from Government Pleader office could not be obtained, in view of the fact that posts of Commissioners, Special Officer on Duty, Administrative Officer and Assistant Director were vacant for two years and post of Accounting Officer also remained vacant for one year and, at clerical level the matter was pending. He would submit that the order was passed by learned Single Judge on 26.9.2017, which came to be served to the department on 10.10.2017, however, in absence of any competent officer, opinion from Government Pleader office of High Court of Gujarat was sought on 8.1.2019 and, thereafter the matter has moved and ultimately the appeal came to be filed by the department on 10.5.2019. He would, therefore, submit that the application may be allowed.

3.1 Mr.Shah would submit that the appellant has a very good case, if the case is examined on merits by the Division Bench. He has taken us through the impugned judgment passed by learned Single Judge and would submit that learned Single Judge has not properly considered the order passed by disciplinary authority and confirmed by the reviewing authority and altered the punishment. He would submit that learned Single Judge ought to have remanded matter to the disciplinary authority for fresh inquiry. In support of his submission, learned AGP, Mr.J.K.Shah has relied upon decision of Division Bench of this Court in Civil Application No.1160 of 2019 in Letters Patent Appeal No.14431 of 2019 dated 1.7.2019. By relying upon the observations made in paragraph 2, 3 and 4, he would submit that Division Bench has held that any government department has various stages and the file moves at its own pace in different departments, and it cannot be presumed that any individual officer was interested in delaying further action. He has also relied upon decision of the Honourable Apex Court in the case of State of Haryana v. Chandra Mani and Others reported in (1996) 3 SCC 132, which has been relied upon by Division Bench in the aforesaid decision and ultimately condoned the delay.

3.2 As far as merits are concerned, he has relied upon a decision of the Honourable Apex Court in the case of Director General of Police, Railway Protection Force and Others v. Rajendrakumar Dubey dated 25.11.2020 reported in 2020 SCC on-line SC 954, and would submit that learned Single Judge has committed an error in passing the order. He, therefore, would submit that delay be condoned and appeal may be heard on merits.

4. On the other hand, Mr.K.B.Pujara, learned advocate appearing for the respondent has vehemently argued that the whole procedure, including taking opinion from Government Pleader’s office, has been carried out subsequent to notice issued by this Court in a contempt application being Misc. Civil Application No.1349 of 2018 and received by the Department. He would submit that, as per the say of the applicants, the order