Employees State Insurance Corporation and Another vs Shankar Puri Cold Storage

Rajan Gupta, J.

C.M. No. 22994 of 2012:

This is an application u/s 5 of the Limitation Act for condonation of 905 days delay in filing the appeal. Learned counsel for the applicant has contended that delay was caused due to unavoidable transfers of Social Security Officer (Legal), Ambala. He has referred to the detailed affidavit filed by Deoki Nandan, Joint Director, Employees'' State Insurance Corporation, Ambala in support of the application.

I have heard learned counsel for the applicant/appellant and given careful thought to the facts of the case.

The appellant corporation has impugned order dated 12.1.2010, passed by Civil Judge (Senior Division), Ambala. Appeal has been filed after delay of 905 days. The ground pressed for condonation of delay is the frequent transfers of Social Security Officer (Legal). According to affidavit, certified copy of the order was delivered on 18.1.2010. Thereafter, legal opinion for filing appeal was obtained on 14.1.2010. Vide letter dated 11.2.2010 matter was referred to Regional Director, ESIC, Faridabad for necessary approval. The authority granted approval on 26.4.2010. Thereafter, letter dated 30.4.2010 was issued to Social Security Officer (Legal), Ambala to get entire evidence from the court. However, due to unavoidable transfers thereafter, matter could not be dealt with. Details of transfers of Social Security Officer (Legal) have been given in para 7 of the affidavit. Vide communication dated 31.3.2011, a reminder was issued to Social Security Officer (Legal), Ambala to forward requisite documents to Regional Office and furnish explanation for delay caused in the matter. The Social Security Officer (Legal), Ambala thereafter traced out the old files. It transpired that earlier incumbents had not obtained evidence from the court at Ambala. Thereafter on 13.5.2011 an application was moved for getting certified copies of entire evidence. On 15.6.2011 another letter was issued for getting the copies of evidence. It was, however, informed that application had been misplaced in the court. A fresh application was, thus, moved on 19.7.2011 for getting certified copies from copying agency. A show cause notice was also issued to Social Security Officer (Legal), Ambala to explain reasons for delay date wise. After requisite documents were obtained, papers for appeal were processed at Divisional Office, Ambala. Same were sent to the office of the counsel at Chandigarh on 31.8.2011. However, no conference could take place on that date as Social Security Officer (Legal) had not prepared the matter and was not conversant with the facts. In the month of August, 2011, Shri Ramphal was officiating as Social Security Officer (Legal), Pinjore. He being under transfer could not go through the relevant file. On 15.11.2011, said officer handed over charge to the present incumbent. While handing over charge, he did not give the update to new incumbent. He was, thus, not aware of pendency of the matter. Social Security Officer (Legal) being overworked, was finding difficult to commute from Pinjore to Chandigarh. Matter was thereafter discussed by an official from Divisional Office at Ambala with the counsel. Shortly thereafter, said official was transferred. His successor faced the same difficulty as his predecessor. The matter was thereafter discussed at Regional Office Faridabad. Thereafter, an official was specially deputed to pursue cases before the court. However, said official was not able to discuss the matter with the counsel on taking charge. By the time proper instructions were available, limitation to file the appeal had expired. Thus, prayer for condonation of delay has been made.

I have heard learned counsel for the appellant and given careful thought to the facts of the case.

In my considered view, no ground to condone the delay is made out. The appellant has to explain each day''s delay in filing the appeal. The reasons given in the application are without any substance. On the other hand, they show gross negligence on part of the appellant corporation in pursuing the appeal. Plea is of frequent transfers of officials, inability to commute from Pinjore to Chandigarh, inability to prepare the case etc. These are not sufficient grounds for condonation of delay in filing the appeal. In Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, the Hon''ble apex court has observed as under:-

The applications filed for condonation of delay and the affidavits of Shri Sirsikar are conspicuously silent on the following important points:

(a) The name of the person who was having custody of the record has not been disclosed.

(b) The date, month and year when the papers required for filing the first appeals are said to have been misplaced have not been disclosed.

(c) The date on which the papers were traced out or recovered and name of the person who found the same have not been disclosed.

(d) No explanation whatsoever has been given as to why the applications for certified copies of the judgments of the trial Court were not filed till 23.8.2010 despite the fact that Shri Sirsikar had given intimation on 12.5.2003 about the judgments of the trial Court.

(e) Even though the Corporation has engaged battery of lawyers to conduct cases on its behalf, nothing has been said as to how the transfer of Shri Ranindra Y. Sirsikar operated as an impediment in the making of applications for certified copies of the judgments sought to be appealed against.

Unfortunately, the learned Single Judge of the High Court altogether ignored the gapping holes in the story concocted by the Corporation about misplacement of the papers and total absence of any explanation as to why nobody even bothered to file applications for issue of certified copies of judgment for more than 7 years. In our considered view, the cause shown by the Corporation for delayed filing of the appeals was, to say the least, wholly unsatisfactory and the reasons assigned by the learned Single Judge for condoning more than 7 years delay cannot but be treated as poor apology for the exercise of discretion by the Court u/s 5 of the Limitation Act.

The affidavit filed by the corporation shows only inefficiency of the officials who were entrusted with the task of filing an appeal. It has also been stated that officials were overworked and thus, not able to pursue the case. Instead of making out a ground for condonation, the affidavit indicts its own officials. Their negligence is writ large and no explanation for condonation is forthcoming. If such a long delay i.e. 905 days is condoned on such vague, general and specious grounds, law of limitation would become completely redundant. It is correct that courts are somewhat liberal in condoning the delay. However, the liberal approach cannot be stretched to the extent of breaking point. I find observations apex court in Maniben Devraj Shah''s case (supra) relevant for the decision of this application.

In view of serious lapse on part of the corporation in pursuing the appeal, application u/s 5 of the Limitation Act deserves to be rejected. Same is hereby dismissed.

FAO No. 5164 of 2012:

Since application for condonation of delay is dismissed, appeal filed by the appellant cannot be entertained. Same is also dismissed.