Narendra Kumar Sahu vs State Of M.P. & Ors

This writ petition is filed by the petitioner against the order dated 28/2/2017 passed by respondent No. 2 whereby departmental appeal preferred by the

petitioner has been dismissed on the ground of delay as the appeal was filed with a delay of three months and 24 days.

Precisely stated facts of the case are that petitioner, Senior Auditor and Head Clerk at office of District Education Officer, Guna was punished for

penalty of stoppage of two annual increments without cumulative effect, under Rule 10 of M.P. Civil Service (Classification, Control and Appeal)

Rules, 1966 on the allegations that in enquiry case of one Abdul Nazeer Qureshi, he caused delay in presenting the matter in departmental enquiry.

The order of penalty dated 28/9/2017 passed by the Collector, District Guna put to challenge in appeal by the petitioner before the Commissioner,

Gwalior Division, Gwalior who in turn, dismissed the appeal on the ground of delay caused in filing the appeal. Therefore, petitioner is before this

Court.

According to learned counsel for the petitioner because of casualness displayed by District Education Officer himself for keeping the filing pending for

taking decision on the proposal of punishment, delay has been caused. Petitioner is not at all responsible for delay. Beside that, it is further submitted

that appeal is vested right of petitioner and dismissed of appeal on the ground of delay is arbitrary and illegal.

Learned counsel for the applicant/State opposed the prayer and prayed for dismissal of the writ petition.

By the impugned order, the appeal preferred by the petitioner has been dismissed on the point of delay of three months 24 days. Although the appeal

ought to have been filed within stipulated period but since the appeal is statutory and vested right of petitioner against the order of punishment,

therefore, same deserves to be considered on merits rather then on technicalities in usual manner, unless the delay indicates insufficiency of cause.

In the case of Sangram Singh Vs. Election Tribunal Kotah and Another, AIR 1955 SC 425, the Hon'ble Judge of the Apex Court Vivian Bose J. in his

inimitable style of writing expressed the impact of procedural law vis a vis substantial justice to the parties to the lis. The same reads as under:-

“A code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment

for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable

elasticity of interpretation should therefore, be guarded against (provided always that justice is done to both sides) lest the very means designed for the

furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice, which requires that men should

not be condemned unheard, that decision should not be reached behind their backs, that proceedings that affects their lives and property should not

continue in their absence and that they should not be precluded from participating in them. Of course be given effect to. But taken by and large,

and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principleâ€​.

Similarly in the case of N.Balakrishnan Vs. M.Krishnamurthy, AIR 1998 SC 3222 in para 9, Hon'ble Supreme Court has dealt with the question of

delay. Para 9 of said decision reads as under:-

“It is axiomatic that condonation of delay is a matter of discretion of the Court, Section 5 of the Limitation Act does not say that such discretion

can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes

delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can

be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of

discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on

whole untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the

superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior

Court to come to its own finding even untrammeled by the conclusion of the lower Court.â€​

Therefore, considering the said legal position as well as fact situation, petition deserves to the allowed and hereby allowed. however, with cost of Rs.

1000/- to be paid by petitioner to High Court Bar Library Fund.

At this Stage a suggestion has been made by this Court by counsel for the petitioner regarding plantation of five (5) saplings/ plants in the vicinity of

Gwalior or Guna city for improvement of environment.

The said suggestion is not punitive in nature and compliance of it is at the discretion of counsel for the petitioner.

Graceful enough in his disposition, suggestion is readily accepted by counsel for the petitioner and he undertakes not only to plant five saplings/ plants

but also to maintain them so that they can grow into  full fledged trees. He believes in maxim “o`{kkjksi.k ds lkFk] o`{kkiks""k.k Hkh vko';d gS!â€​.

He further undertakes to submit photographs also at regular through PUDs after disposal of the case till the trees sufficiently gains strength and

nourishment.

While appreciating the gesture of counsel for the petitioner, wherein he has shown his concern for improvement of environment, this Court directs the

petitioner through counsel to plant five saplings in the vicinity of Gwalior city within two months from today and submit the photographs in this regard

alongwith an affidavit. Similarly, it is expected from the petitioner or his counsel that the photographs of the plantation alongwith affidavit would also

be submitted within three months after the plantation of the saplings before the appellate Authority i.e. Commissioner, Gwalior Division, Gwalior, if the

appeal remains pending by that time.In case, same got disposed of by that time, then the said photographs and affidavit will have to be submitted by

the petitioner before the District Education Officer, District Guna for information and compliance of this Court order. Any noncompliance by the

petitioner can be reported by District Education Officer to the Registry of this Court.

Reiterating the appreciation for the gesture of counsel for the applicants, the petition is allowed and the impugned order dated 28/2/2017 is hereby

quashed and petitioner is relegated back to the appellate authority and appellate authority is directed to decide the appeal preferred by the petitioner on

merits itself.

Petition stands allowed and disposed of in the terms as indicated hereinabove.