State Of Jammu & Kashmir And Ors vs Bashir Ahmad Mir

Gita Mittal, CJ

By way of the instant order, we propose to dispose of the present application which has been filed by the respondent seeking condonation of delay in filing the Letters Patent Appeal (LPA No. 126/2019) assailing the judgment dated 15th November, 2017, whereby the learned Single Judge has allowed SWP No. 285/2016 which was filed by the private respondent.

The applicants have also sought to assail the order dated 26th December, 2017 which was passed on the miscellaneous application being MP No. 1/2017 making a typing correction in the order dated 15th November, 2017.

We have heard Mr. N.H.Shah, learned counsel for the applicants and Mr. Jahangir Iqbal Ganaie, learned senior counsel for the respondent and have carefully gone through the record.

Before dealing with this application, we may briefly note few facts which had given rise to the filing of the writ petition.

The respondent before us (while posted as Principal, Higher Secondary School Dangerpora, Sopore), was suspended by an order dated 10 th December, 2013 pending disciplinary enquiry. During the period of suspension, he was transferred by an order dated 22nd August, 2014. For the reason that the appellants-department failed to conduct any inquiry in accordance with rules with regard to the allegations which had been levelled against him, the respondent moved a representation before the authorities requesting them to hold the inquiry.

It appears that an inquiry committee was constituted by an order dated 16 th January, 2014 which had given a report. Aggrieved by the report which was given as well as the continued suspension, the respondent had filed SWP No. 285/2016, making the following prayers:

"a. Writ of Certiorari quashing the impugned order of suspension bearing order No. 2358-DSEK of 2013 dated 10-12-2013 issued by respondent No. 2, in so far as it pertains to the petitioner be quashed.

b. Writ of certiorari Govt order No. 591-Edu of 2014 dated 22-8-2014, in so far as it pertains to the petitioner be quashed.

c. Writ of Mandamus directing the respondents to reinstate the petitioner and pay him all consequential benefits right from the date these became due to him with a further direction to adjust the petitioner/post him suitably and properly commensurate with his service and status in the department."

The writ petition was considered at length by the learned Single Judge and by an order dated 15th November, 2017 allowed with the following directions:

"08 The cumulative effect of all that has been said and done above is that the impugned order of suspension beaing No. 2358-DSEK of 2013 dated 10th of December, 2013 and the government order bearing No. 591-Edu of 2014 dated 22nd August, 2014, in so far as these relate to the petitioner are quashed and the Respondents are, by a writ of mandamus, directed to reinstate the petitioner into service. The respondents shall also, within a period of six weeks, take a decision regarding the benefits of pay that have accrued to the petitioner during the period he has remained under suspension. This order shall not be interpreted to mean that the Respondents are, in any way, debarred from holding an enquiry into the matter against the petitioner nor shall the inference that they are hampered from launching any criminal prosecution against him be deduced and drawn from it."

While so directing, the learned Single Judge had observed that though the petitioner/respondent herein stood placed under suspension by the order dated 10th of December, 2013, no case had been registered against him in respect of the allegations and no memorandum of charges/charge sheet had been served on him. The learned Single Judge was also of the view that a period of almost three years had passed since the period of suspension and the respondents could not keep the fate of the petitioner hanging till infinity.

It appears that there was a mistake in recording the number of the order dated 10th of December, 2013. The respondent herein consequently filed MP No. 01/2017 for correction of this error. This application was considered and allowed by the order dated 26th of December, 2017, when it was directed by the learned Single Judge that the suspension order mentioned in the judgment dated 15th November, 2017 passed in SWP No. 285/2016 shall correctly read as „Order No. 2357 DSEK of 2013 dated 10th December, 20 13‟instead of „Order No. 2358-DSEK of 2013‟.

The statutory period of limitation for filing the Letters Patent Appeal assailing the judgment dated 15th November, 2017 expired on or around 14th January, 2018. The appeal came to be filed for the first time on 14th February, 2019 which is 465 days after the passing of the order.

In the application, the applicants have attempted to explain the circumstances in which the delay was occasioned stating as follows:

"..after having received the copy of the impugned order/judgment passed by Hon‟ble Single Bench as passed in the relevant writ petition, the question of filing of letters Patent Appeal was examined by the Appellants in light of the records. In the process, the Appellants were required to collect the records from various subordinate offices and also to obtain legal advice from the Department of Law, Justice and Parliamentary Affairs. The examination of the matter and consideration of the question of filing of appeal at various levels obviously led to consumption of time."

The above reproduction shows that the applicants have completely failed to disclose either the date on which copy of judgment was received or the dates when the matter was examined for filing the appeal. No date was mentioned as to when the records were collected or the legal advice was received. The only date mentioned in the application is 11th October, 2018, on which date the sanction for filing the letters patent appeal was given by the Law Department. It is also stated that the counsel took up the matter with the applicants for making available the relevant record on 30th November, 2018. Thereafter, it is baldly stated that, after receiving the record it took "some days" for drafting and filing the present LPA. A further bald statement stands made that the delay is neither willful nor intentional.

Law mandates that explanation for each day‟s delay has to be given. It is trite that the circumstances in which delay in filing the appeal stands occasioned have to be carefully explained. Though it has been held that the explanation for delay in filing an appeal must be liberally construed.

However, some basic explanation is essential.

The present application has been filed on the presumption that a liberal view would be taken and no explanation at all would be warranted.

The applicants appear to have presumed that the applicant would meet no resistance from the respondent.

On the other hand, Mr. Jahangir Iqbal Ganaie, learned senior counsel has vehemently objected to the condonation of delay in the matter. It has been pointed out that even after obtaining sanction from the Law Department on 11th October, 2018, the applicants have taken 465 days, i.e., five months before filing the appeal on 14th February, 2019. Mr. Ganaie has urged that no explanation at all has been tendered in the application which could justify the time which the applicants have taken in filing the appeal. Not a single relevant date which could enable this Court to conclude that the delay was not wilful or intentional or that the applicants have acted bonafide, has been put on record.

In its reply to the present application, the respondent has informed this Court that the judgment dated 15th November, 2017 was served upon the applicants and that, when no action was taken for compliance, the respondent filed a representation before the School Education Department of the Jammu and Kashmir. The respondent has placed on record a communication dated 22nd May, 2018 whereby a factual report was called by the School Education Department from the Director, School Education Department, Kashmir to enable it to proceed further in the matter in the case of the writ petition which had been filed by the respondent.

We are further informed that in view of the failure of the applicants to comply with the judgment dated 15th November, 2017, the respondent had filed a contempt petition which was registered as CPSW No. 569/2018. In this contempt petition, an order dated 24th October, 2018 was passed calling upon the applicants to file the compliance report.

Even this did not persuade the applicants to comply or instigate it to file the instant appeal. The Law Department is stated to have granted the sanction on 11th October, 2018 to file the appeal. Yet the applicants did not move in the matter. It was only on 14th February, 2019, the appeal stands filed.

What is most unfortunate that in the application for condonation of delay, the applicants have deliberately concealed the fact that the contempt proceedings were initiated and that by order dated 24th October, 2018, the applicants had been directed to file the compliance report.

We are informed by Mr. Jahangir Iqbal Ganaie, learned senior counsel that even till date, no inquiry has been initiated against the respondent by the applicants.

In a judgment reported at (1962) 2 SCR 762 Ramlal & Chhotelal v. Rewa Coalfields Ltd,. the Supreme Court has held that in showing sufficient cause to condone the delay, it may not be necessary that the applicant has to explain the whole of the period between the date of the judgment till the date of filing the appeal. It would be sufficient that the applicant has to explain the delay caused by the period between the last of the dates of limitation and the date on which the application/appeal is actually filed.

While it is well settled that the discretion conferred by Section 5 of the Limitation Act to condone the delay should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law, it is essential for a court considering the condonation of delay to be satisfied that the applicant has acted with reasonable diligence in prosecuting the matter. In (1969)1 SCR 1006 Shakuntla Devi Jain v. Kuntal Kumari & Ors, a three Judge Bench of the Supreme Court had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

The failure to give explanation, much less a reasonable or satisfactory explanation for condonation of delay was examined by the Supreme Court reported at AIR 1998 SC 2276, P.K.Ramachandran v. State of Kerla & Anr. when it was observed as follows:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds."

Our attention has been drawn by Mr. Jahangir Iqbal Ganaie, learned senior counsel wherein in similar circumstances, an explanation as has been rendered by the applicants stands rejected by the Supreme Court of India by its order dated 9th May, 2019 in Special Leave Petition (Civil) Diary No (s). 13348/2019, entitled The State of Bihar & Ors. Vs. Deo Kumar Singh & Ors, holding as follows:

"We are of the view that a clear signal has to sent to the Government Authorities that they cannot approach the Court as and when they please, on account of gross incompetence of their officers and that too without taking any action against the concerned officers. No detail of this delay of 728 days have been given as if there is an inherent right to seek condonation of delay by State Government. The Law of Limitation apparently does not apply to the State Government according to its conduct.

That such condonation of delay is no more admissible on the pretext of Government working leghargy is clear from the judgment of this court in The Chief Post Master General v. Living Media India Ltd. [2012 (3) SCC 563].

We strongly deprecate the casual manner in which the Division Bench was approached and also this Court has been approached; the objective possibly being to get a certificate of dismissal from this Court. This is complete wastage of judicial time and the petitioners must pay for the same.

We, thus, dismiss the special leave petition on delay and impost cost on the petitioners of Rs. 20,000/- to be recovered from the officers responsible for this delay and be deposited with the Supreme Court Mediation Centre, within four weeks. Certificate of recovery be filed in this court.

We also direct the Chief Secretary of the State of Bihar to look into this matter to ensure better management of the legal cases.

Consequently, the special leave petition is dismissed in the aforesaid terms."

(Emphasis by us)

The view taken by the Supreme Court in the case reported at 2012 (3) SCC 563, Chief Post Master General v. Living Media India Ltd, also deserves to be considered. It was observed as follows:

"22. In CWT v. Amateur Riders Club, there is a delay of 264 days in filing the SLP by the Commissioner of Wealth Tax, Bombay. The explanation for the delay had been set out in the petitioner‟s own words as under: (SCC p. 604, para 2)

"2....... (g) The Advocate-on-Record got the special petition drafted from the drafting Advocate and sent the same for approval to the Board on 24-6-1993 along with the case file.

(h) The Board returned the case file to the Advocate-on-Record on 9-7-1993 who re-sent the same to the Board on 2-9-1993 requesting that draft SLP was not approved by the Board. The Board after approving the draft SLP sent this file to CAS on 1-10-1993."

"3......Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that the Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest.

In Pundlik Jalam Patil v. Jalgaon Medium Project the question was whether the respondent Executive Engineer, Jalgaon Medium Project had shown sufficient cause to condone the delay of 1724 days in filing appeals before the High Court. In para 17, this Court held: (SCC p. 455)

‟17.....The evidence on record suggests neglect in its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and „do not slumber over their rights,"

After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under (Pundlik Jalam Case, SCC pp. 457-58, paras 29-30):

" 29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.

In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps."

(Emphasis supplied)

The principles which apply have been culled out by the Supreme Court in a recent judgment reported at (2013)12 SCC 649 Esha Bhattacharjee v. Raghunathpur Nafar Academy & Ors in paras 15 and 16 deserve to be considered in extenso and read as follows:

"From the aforesaid authorities the principles that can broadly be culled out are:

i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."

Reference may seriously be made to the recent pronouncement of the Supreme Court reported at 2014 SC 1612 Brijesh Kumar & Ors. V. State of Haryana & Ors, wherein the Supreme Court has observed thus:

"11. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone."

(Emphasis supplied)

Mr. Jahangir Iqbal Ganaie, learned senior counsel has placed reliance on the pronouncement of this Court on the same aspect reported at 2018 Vol. 1, JKJ 365; Director, SKIMS & Anr. V. Mohd Ramzan Bhat (Dr.).(paras 5 & 9).

The principles with regard to condonation of delay are thus well settled and it is unnecessary to burden the present judgment with further precedents which are to the same effect. Suffice it to say that the delay in filing the appeal beyond the statutory period of limitation must not be wilful and must not have been intentional. Such delay has to be adequately explained in an application seeking condonation of delay.

In the present case, we find that the applicants have not cared to give any explanation for the delay which has been occurred. Even if this Court could be persuaded to take a lenient view in the matter, further to hold that that the applicants had acted bonafide and that the delay was not wilful or intentional and if the expression "sufficient cause" which could enable this Court to condone the delay, is liberally construed so as to advance the cause of justice, in the instant case, there is not even an iota of explanation for the delay which could enable this Court to do so.

The entire narration of facts would show that the applicants have acted with utmost neglect and indolence in the matter.

The respondent stands suspended since 2013, for the long period of six years without any inquiry. Public money has been expended on the payment of subsistence allowance which is being paid to the respondent, though the respondent is discharging no duties at all. The applicants have thus caused wastage of public funds as well.

It is noteworthy that the judgment of learned Single Judge did not preclude the applicants from holding disciplinary proceedings or taking criminal action against the respondent. As noted above, the applicants have not bothered to do so.

It would appear that the only reason for filing the instant appeal is the contempt proceedings which were initiated by the respondent. Mr. Ganaie has placed the order dated 8th May, 2019 passed by the Contempt Court.

For all these reasons, we find no merit in this application and the same is dismissed with costs which are quantified at Rs. 25,000/-. These costs shall be apportioned between the respondent and the Advocates‟ Welfare Fund. The costs shall be paid within four weeks from today. It is made clear that these costs are in addition to the costs imposed by the learned Single Judge.

Before parting with this case, we may note that we are finding that this is not only the case where similar unexplained delay has been placed before this Court. The fact that the cases where the State is applicant, it has been noted that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the habit of note-making, file-pushing and moving the files from table to table, unfortunately the matters are delayed on the part of the State. It is well recognized that the State represents collective cause of the community. Judicial precedents have observed that the decisions are taken by officers/agencies proverbially at slow pace and the encumbered process for moving the files from table to table and keeping of files on the table for considerable time causing delay intentional or otherwise, is a matter of routine. The courts are not immune from granting latitude and condoning the delay which had occurred on the part of the State because of the public interest which suffers.

We would draw a caution however. Every delay in decision making and taking action on the part of the State cannot be condoned. It is high time that the decision making was made accountable and delay in taking action was penalized. We cannot lose site of the fact that such delay may actually be actuated by collusion and mala fides. Therefore, the Secretary of the Department concerned should examine every file where a decision is taken to file an appeal where delay is occurred and proceed in the matter against the officer responsible for the same. Such negligence and non-action is resulting in wastage of huge amounts of public funds as well as valuable judicial time.

It is high time that a method for strict scrutiny was adopted by the Law Department. We see no reason as to why an electronic file cannot be created in a tabulated format containing details of the case; date of the judgment and dates of its processing till compliance / filing of appeal. Even the appeal needs to be similarly tracked. Colour coding to track urgency may be adopted.

Let an action taken report in this regard be filed by the Principal Secretary, Department of Law, Justice and Parliamentary Affairs, J&K Govt. before us within four weeks.

Let a copy of this order be sent to the Chief Secretary, Government of J&K State, by the Registry.

LPA No. 126/2019:

As a result of the order passed in CM No. 57/2019 (CDLSW No. 14/2019), this appeal is dismissed.