The Haryana State Govt. and Others vs Tara Chand

Ranjit Singh, J.—This appeal is filed with a delay of 523 days. Alongwith the appeal, application seeking condonation of delay has also been filed. The impugned judgment was passed on 3.4.2008. The certified copy of the same was applied on 16.4.2008 (wrongly mentioned as 16.4.2009. It is further stated that the copy was received on 30.4.2008 (wrongly mentioned as 30.4.2009). The comments of the Government Pleader were received by the Government on 14.5.2008. The opinion was that it is not a fit case to file an appeal. This opinion was agreed to by the L.R.Haryana. The case accordingly was sent to Accountant General, Haryana for implementing the judgment. On 12.11.2008, the Accountant General asked for approval of the Finance Department for getting the pension and gratuity. The DGP, Haryana accordingly was asked to obtain the sanction through a communication dated 12.1.2009. The Principal Secretary to Government of Haryana, Home Department, found that in view of the judgment passed in Civil Writ Petition No. 8666 of 2005, titled as Ghanshyam Dass Tehlan v. State of Haryana, the case was fit one for appealing. Accordingly, this Regular Second Appeal was filed with a delay of 523 days.

On being put to notice, the respondent, Tara Chand, has filed reply to the application seeking condonation of delay. By way of preliminary objection, it is stated that the delay is not due to any administrative reasons and it is on account of the fact that earlier a decision was taken not to file an appeal. The respondent-plaintiff accordingly would plead that the appellants have not shown sufficient cause to ask for condonation of delay and the delay has remained unexplained.

During the course of arguments, counsel for the respondent-plaintiff has also referred to some of the earlier cases decided where the cases of similarly situated persons, who had resigned by putting some service, were allowed pension and those cases had acquired finality. In addition, counsel for the respondent has referred to Sitaram Ramcharan and Ors. v. M.N. Nagrashana Authority under the Payment of Wages Act for Ahmedabad Area, Ahmedabad and Ors. AIR 1960 Supreme Court 260 in support of his plea. The Hon''ble Supreme Court in this case has considered the principle to find sufficient cause and has observed that the sufficient cause must cover whole period of delay upto the application. It is also observed that it is for the party to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay.

There cannot be any dispute about this proposition of law, but this observation has got no application in the facts situation in the present case. The reasons for which there was a delay on the part of the State to file this appeal have been stated in the application and have been noted above. It cannot be said that delay upto the date of filing the appeal is not explained. Whether these reasons are sufficient or not is different issue and can not be confused with the issue that complete period has not been explained by the State. The reasons to explain this delay are that initially it was decided not to file this appeal, it being not a fit case for appeal. While the judgment was in the process of being implemented, another case was decided by this Court holding that upon resignation, pension would not be payable. The issue in dispute in the suit was whether a person, who resigns before completing the qualifying service, would be entitled to pension and pensionary benefits or not. This issue has not only been settled by this Court in Ghanshyam Dass Relhan v. State of Haryana 2007 (1) SCR 159, but this decision has subsequently been affirmed by the Hon''ble Supreme Court and is reported as Ghanshyam Dass Relhan v. State of Haryana and Ors. 2009(3) S.C.T. 617. Thus, the issue in dispute is no more res integra. The entitlement to get pension in the case of resignation has now been fully settled. In view of this change in law, the State was justified in changing the decision to file appeal against the impugned judgment. The reason for initial decision and subsequent change of mind is on the basis of law laid down by this Court and upheld by the Hon''ble Supreme Court. This, in my view, would be a sufficient cause to explain the delay in filing the appeal.

Mr.Nehra has referred to State of Nagaland Vs. Lipok AO and Others, to contend that if proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court, then length of delay would be immaterial. The sufficiency of the cause and shortness of the delay may be one of the circumstances to be taken into account in exercising the discretion. It is also observed that as to what constitute sufficient cause cannot be laid down by any hard-and-fast rules. Reference in this case is made to number of decisions earlier rendered by the Supreme Court.

In State of Kerala v. E.K. Kuriyipe and Ors. it is held that whether or not there is a sufficient cause is a question of fact and would depend upon the facts and circumstances of the particular case. In O.P. Kathpalia Vs. Lakhmir Singh (Dead) and Others, , it is held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. The expression "sufficient cause" is held to be adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice that being the live purpose for the existence of the institution of courts.

The courts have also held that the expression "every day''s delay must be explained" would not mean that a pedantic approach should be made. This doctrine must be applied in a rational, common-sense, pragmatic manner. It is also observed that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

As held in Lipok AO''s case (supra), impersonal state machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, the delay on the part of the State was held to be less difficult to understood though more difficult to approve. One has also to take note of the fact that the State represents collective cause of the community and so does not deserve a litigant-non-grata status. The Court also observed that merit is preferred to scuttle a decision on merits in turning down the case of technicality of delay in presenting the appeal.

As already noticed, the position of law regarding entitlement of pension in case of resignation is now fully settled. If the impugned judgment is allowed to stand on technical ground by not condoning the delay, the result will be grave miscarriage of justice. Sufficient cause being a condition precedent for exercise of discretion, the length of delay as highlighted by counsel for the respondent-plaintiff would be immaterial. The cause which has led to this delay has faithfully and fairly been stated by the State in its application. Apparently, the State has decided to file this appeal to seek correction of the view taken by the first Appellate Court to bring it in tune with the law laid down by the Hon''ble Supreme Court. The delay, if not condoned in this case, may lead to miscarriage of justice. The term "sufficient cause" being elastic in nature has to be considered in the manner that it sub-serves the ends of justice, which is the purpose for which the institution of Courts exists. The grounds given by the State to seek condonation of this delay, thus, would show a sufficient cause and delay in filing the appeal, thus, deserves to be condoned.

The application is accordingly allowed and delay in filing the appeal is condoned.

Regular Second Appeal No. 4632 of 2009 (O&M)

Legal position is fairly settled in view of the law laid down by this Court in Ghanshyam Dass Relhan v. State of Haryana 2007 (1) SCR 159, which has now been upheld by the Hon''ble Supreme Court in Ghanshyam Dass Relhan v. State of Haryana and Ors. 2009 (3) S.C.T.617. It may also need a notice that this issue was also referred to Full Bench of this Court and the Full Bench in Regular Second Appeal No. 13 of 2009 (State of Haryana and Ors. v. Dr. (Mrs.) Sudha Seth, decided on 18.9.2009, has already considered the issue in detail and on the basis of law laid down by the Hon''ble Supreme Court, the legal position has been reiterated. The substantial question of law arising in this case relating to the right of an employee to get pension and pensionary benefits in event of resigning is, thus, fully settled. The impugned judgment cannot be sustained. The appeal filed by the State is accordingly allowed. The judgments under appeal are set-aside. Decree sheet be prepared accordingly.