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Judgment
Heard Shri Vinod Nautiyal, the learned Addl. Advocate General for the State of Uttarakhand and Shri N.S. Negi, the learned Counsel for the opposite party.
The present Special Appeal has been filed against an order of the learned Single Judge whereby the order of termination of the writ petitioner was set aside. There is a delay of 989 days in filing this special appeal. The impugned order was passed on 17th April, 2006 and, this Special Appeal has been presented before the Court on 3rd March, 2009. There is a report of the Stamp Reporter indicating a delay of 989 days in filing the present appeal. An application u/s 5 of the Limitation Act has been filed alongwith an affidavit. Paragraph 3 of the affidavit indicates that the Deputy Director, Horticulture, Garhwal Mandal, Pauri had sent the information about the order of the learned Single Judge vide his letter to the Director, Horticulture which was received in the office of the Director on 30th December, 2006. It is also alleged that an opinion was sought from the District Government Counsel who opined that the services of the writ petitioner should be regularized. In spite of this opinion, the matter was forwarded to the State Government and, in the subsequent paragraphs, certain correspondence had been alleged to have been transpired between the Government and the Department seeking various information. In paragraph 9 of the affidavit, it has been stated that the State Government eventually gave permission on 24th March, 2008 to file the special appeal. The affidavit further indicates that the Horticulture Department proceeded in their casual manner and contacted the Chief Standing Counsel who asked for certain information and, in the meanwhile, the Panchayati Raj Election took place and thereafter, the High Court closed during the winter vacation, etc., etc. and eventually, this special appeal was prepared, dictated and filed in the Court in March, 2009. A prayer has consequently been made to condone the delay contending that there has been no negligence or laches on the part of the appellant in filing the appeal belatedly and the delay, if any, is liable to be condoned for the aforesaid reasons.
The learned Addl. Advocate General contended that since there is a bureaucratic process in the movement of the files from one office to another office and, from one department to another department, the Court should consider the delay which has occurred on account of the processing of the matter through official channel. The learned Addl. Advocate General submitted that the approach of the Court should be pragmatic and not pedantic and that the provision of Section 5 of the Limitation Act should be liberally construed and that the explanation given should not be rejected by adopting a strict standard of proof which would lead to a miscarriage of justice. The learned Addl. Advocate General in support of his submissions has placed reliance upon various decisions of the Supreme Court in Special Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma, wherein the Supreme Court held that the approach of the Court should be pragmatic and not pedantic and that the Government should not be forced to explain each days delay as required under the Limitation Act. The Supreme Court in State of U.P. v. Heera N. Gurnani and Ors. (2004) 13 SCC 582 held that, in case of appeal being filed by the State or its instrumentalities, the decision is required to be taken on various levels which causes delay and, therefore, the Court should consider this aspect while deciding whether the delay should be condoned or not. In State of H.P. and Anr. v. Satya Devi and Ors. (2005) 12 SCC 446, the Supreme Court condoned the delay of 55 days holding that the delay was caused on account of administrative reason which was not willful or negligent at the behest of the department. The learned Addl. Advocate General further placed reliance upon a decision of the Supreme Court in Divisional Manager, Plantation Division, Andaman and Nicobar Islands Vs. Munnu Barrick and Others, , wherein the Supreme Court reversed the order of the High Court rejecting the delay of 103 days. The Supreme Court held that since serious question of law was involved, the High Court should have condoned the delay.
The learned Addl. Advocate General further placed reliance upon a decision of the Division Bench of this Court in Defective Special Appeal No. 33 of 2007, State of Uttarakhand and Ors. v. Rajkiya Vahan Chalak Singh decided on 10th May, 2007, wherein the Court after considering various decisions of the Supreme Court including the decisions cited aforesaid found that the delay in filing the appeal by the State of Uttarakhand was liable to be condoned.
In the present case, the Court finds that the explanation given by the appellant is far from satisfactory and, an attempt has been made to portray to the Court that there has been no willful laches or negligence on their part in approaching the Court. In paragraph 3, the Court is appalled by the bald statement which the appellant has made, namely, that the information of the judgment of the learned Single Judge was sent to the Director by a letter dated 24th April, 2006 which was received in the office of the Director on 13th December, 2006. This Court cannot fathom that the letter which has been sent, in all probability, through the post office of the Central Government, was received after more than six months. There is nothing on record to indicate that the letter was in fact, received by the Director on 13th December, 2006. Further, the Government gave permission to the Department to file a Special Appeal by an order of 24th March, 2008 and, inspite of receiving this information on 26th March, 2008, it took the department almost one year to prepare and file the special appeal before the High Court. The explanation given for this delay of one year, i.e. from the date of receiving the permission, till the date of filing the special appeal, is clearly an afterthought in order to fill up the lacuna in approaching the Court.
The Limitation Act applies equally to an ordinary litigant as well as to the State Government. Different standards for an ordinary litigant and different standards for the State Government cannot be adopted. The State Government cannot be given special treatment merely because the State Government is impersonal and has its administrative problems because of red-tapism in the movement of files from one chamber to another chamber and, from one office to another office or from one department to another department. This red-tapism or bureaucratic wrangles could be understandable 20 years ago or even before that, when communication was a problem and matters were communicated in writing which were sent by special messengers by post, but now, with the advent of modern technology, where every person has a mobile in his pocket, where every department has a fax machine and, within a matter of seconds information can be transferred. Communication is sent through e-mail and necessary and essential information could be supplied through video conferencing.
It is, therefore, not possible for the Court to believe that information sent in April, 2006 by the Deputy Horticulture Officer was received by the Director in December, 2006. The plea raised is nothing but an afterthought, trying to put dust in the eyes of Court. The State Government is clearly behaving like a petty litigant. No doubt, certain administrative and bureaucratic process occur. No individual is personally involved and all officers are impersonal which no doubt results in the delay in filing the appeal. But undue delay cannot be condoned. The State Government is aware of the law of limitation and, in a given case, where the appeal is required to be filed, the officer concerned must ensure that necessary approval is sought at the earliest from the higher authorities. It is not sufficient on the part of that officer to just write a letter seeking opinion and, forwarding it to the higher authority and, then sitting quietly without being bothered as to what will happen next in that matter. More responsibility is required to be fastened on the officers and on the respective departments where legal matter has to be pursued further in the Court of law.
In the light of the aforesaid, the Court is conscious of the decisions given by the Supreme Court holding that a pragmatic approach should be adopted while condoning the delay where appeals are filed by the State Government. No doubt, the strict standard of proof is not required to be adopted asking the State Government to explain every days delay or for that matter every hours delay but, the State Government should also be conscious and give a valid justification for the delay in approaching the Court. It has become a patent ground that the appeal is being delayed because of bureaucratic process. In the present case, we have found that a lackadaisical approach had been adopted by the State Government in filing the appeal. The explanation given is far from satisfactory and, in our opinion, the explanation is an afterthought. In view of the aforesaid, this Court is not satisfied with the explanation given by the State in their affidavit accompanying the Section 5 application. There has been a delay of nearly 3 years in filing the appeal. Further, we find that inspite of permission being granted by the State Government, the department took almost a year in filing the special appeal for which no sufficient explanation has been given.
Even otherwise, we find on merit that the order of termination was set aside by the learned Single Judge on the ground of violation of the principles of natural justice. The learned Single Judge found that the order of termination was passed without giving an opportunity of hearing. The only ground urged on merit is that the learned Single Judge did not consider the impact of the judgment of the Hon''ble Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, . The said submission is patently misplaced. It is not a case of backdoor entry of the writ petitioner being regularized by an order of the Court but it is a case of termination of his services by an order passed by the authority which has been set aside on the ground of violation of natural justice.
In view of the aforesaid, the Court does not find any plausible explanation being given by the appellant. The application u/s 5 of the Limitation Act cannot be condoned and is rejected. The Court finds that a frivolous appeal has been filed after almost 3 years. The Court does not find that any substantial question of law exists which warrants the filing of the special appeal. Consequently, we are constrained to dismiss the appeal with cost of Rs. 50,000/- which shall be deposited by the State Government before the Registrar General within four weeks from today, failing which the Registry shall list the matter again before this Court for appropriate orders for recovery of the said amount as arrears of land revenue. The amount so deposited will be kept in the Legal Aid Fund maintained by the High Court.