Home Secretary to Govt., Punjab vs Sarwan Singh

Brief fact necessary for the disposal of this revision petition are that the respondent Sarwan Singh was appointed as Warder by the Superintendent, Headquarter Jail, Amritsar, in 1983 on ad hoc basis for 89 days. After some break, he was reappoint-ed for another term of 89 days. Ultimately the case of the respondent was placed before Departmental Selection Committee for re-gularisation in 1987. The said Committee found that Sarwan Singh did not fulfil the required physical standard and was thus not eligible to continue as a Warder. His services were accordingly terminated in 1987 in accordance with the terms and conditions of the letter of his appointment. Sarwan Singh respondent filed Civil Writ Petition No, 1912 of 1987 in this Court, which was dismissed by a Division Bench on July 24,1987. Thereafter the plaintiff filed Civil Suit No. 85 dated April 19,1988, for a declaration that the order terminating his services was null and void and that he continued to be in service. The suit was decreed by the learned Subordinate Judge, Amritsar, on September 12, 1990. An application for certified copy was made by the State, defendant in the suit, on September 13, 1990. The certified copies were ready on October 5, 1990. The period of 30 days for filing an appeal was to expire on November 4, 1990, after excluding the time taken for the preparation of the certified copy. Actually the appeal was filed late by 41 days on December 15, 1990. An application was made u/s 5 of the Limitation Act for condo nation of delay. The explanation given was that the Home Secretary recorded a decision on the file on October 31, 1990, that the judgment and daces of the trial Court was to be appealed against and sent the file of the office of the Legal Remembrance. It was marked to one Avtar Singh, Clerk, who was on leave, and on the expiry of his leave, he joined the office on November 12, 1990. He took time in taking up the case and some more time in tracing the back reference and handed over the papers to the dealing assistant on November 26, 1990. Clerk of the Superintendent, Jail, which was the department concerned, came to collect the papers, in order to hand over the same to the District Attorney for filing the appeal. It was found that certified copy of the decree sheet had been mislaid. A fresh certified copy of the decree-sheet was obtained and appeal filed on December 15, 1990. Affidavits of the officials concerned were filed with the application u/s 5 of the Limitation Act before the lower appellate Court. The learned Additional District Judge by order dated April 27, 1991, held that the appellant, petitioner herein, failed to make out sufficient cause for condo nation of delay, and accordingly dismissed the appeal as barred by limitation. It may be stated here that a Division Bench of this Court in Des Raj Vs. Om Parkash and Another, held that an order dismissing appeal after dismissal of application u/s 5 of the Limitation Act did not amount to a decree within the meaning of Section 2(2) of the Code of Civil Procedure. This is how the State has preferred the present revision instead of a regular second appeal.

The contention of Mr. P. S. Thiara, learned Assistant Advocate-General, Punjab, is that the question whether sufficient cause existed or not was a mixed question of law and fact and this Court had ample powers u/s 115 of the CPC to interfere in the conclusion reached by the lower appellate Court. It was further submitted by Mr. Thiara that the latest trend of decisions of the apex Court was that Section 5 of the Limitation Act should be given a liberal construction to advance the cause of justice.

The contention of the learned Counsel for the respondent, on the other hand, is that the finding that there did not exist sufficient cause was a finding of fact of its revisional jurisdiction under Sec. 115 of the Code of Civil Procedure. Reliance has been placed on Des Raj''s case (supra) (D. B.). The further contention of the learned Counsel is that the State is to be treated at par with a private party and is not entitled to any special concession in the matter of making out a case for condo nation of delay. Learned Counsel also vehemently emphasized that with the expiry of the period of limitation a vested right had accrued in favour of the respondent and the said right could not be taken away unless the opposite party had made out a clear case of sufficient cause, explaining the delay. Reliance has been placed on The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, .

I have given my earnest consideration to the respective contentions of the learned Counsel.

No doubt, in Des Raj''s case (supra) in paragraph 20, an observation occurs to the effect that this Court cannot interfere with the finding of fact arrived at by the subordinate Courts and substitute its own decision after reappraisal of the evidence, another Division Bench in Tirath Ram v. Municipal Committee, Bhatinda (1990) 2 PLR 171 held that the said question was a mixed question of law and fact. I am inclined to agreed with the observation made in Tirath Ram''s case (supra) and, therefore, there is no technical difficulty in going into the sufficiency of the cause under Sec. 5 in the exercise of the revisional jurisdiction.

In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , the Supreme Court observed that the Legislature had conferred the power to condone the delay in enacting Sec. 5 of the Limitation Act in order to enable the Courts to do substantial justice to parties. Their Lordships further observed that the expression "sufficient cause" was adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justice, which is the life-purpose for the existence of the institution of Courts. It was also laid down that the State as distinguished from a private party ought not to suffer because it was a State. It was added that "In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more to approve". Again in G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, , it was laid down by their Lordships of the Supreme Court that in assessing in a particular case what constitutes sufficient cause for purposes of S. 5, it might be somewhat unrealistic to exclude from the considerations than go into the judicial verdict, those factors which are peculiar to and characteristic difficult of the functioning of the Government. It was further observed that it would be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters.

Considered in the light of the recent decisions of the apex Court, it must be remembered that the delay involved was of 41 days, the Home Secretary had taken a decision on the file to prefer an appeal well within limitation, and the delay occurred on account of handling of the file by subordinate officials in the office of the Legal Remembrance. An explanation was offered which deserved acceptance. For all these reasons, I am of the considered view that there was sufficient cause for condo nation of delay and the lower appellate Court fell into a grave error in dismissing the application u/s 5 of the Limitation Act.

For the foregoing reasons, the revision petition is allowed, the order of the lower appellate Court is set aside, the application under Sections of the Limitation Act is allowed and the delay in filing the appeal in the court of the District Judge is condoned. It is directed that the appeal shall be admitted by the District Judge and he shall dispose of the same on merits according to law within six months from the receipt of a copy of this order.

Parties through their counsel are directed to appear in the Court of the District Judge, Amritsar, on January 6, 1992. It is open to the District Judge to keep the appeal on his own file or entrust it to one of the Additional District Judges working in that district.

Petition allowed.