Leave to amend the prayer clause. The amendment to be carried out forthwith. 2. Heard Mr. Nirav Sanghavi, learned advocate, for Mr. Dagli, learned advocate for the petitioner, and Mr. Yagnik, learned AGP for the respondent – State Government.
Having regard to the issue involved in the petition, the petition deserves consideration. Hence, RULE. Mr. Yagnik, learned AGP, has waived service of Rule for the respondent – State Government.
At the request of and with consent of learned counsel appearing for the contesting parties, the petition is taken up for final decision today.
3. In present petition, the petitioner has prayed that:-
“9(B) That the Hon'ble Court may be pleased to allow this Special Civil Application by quashing and setting aside the impugned judgment & orders passed by respondent No.2 on dated 3.1.2011 and 23.2.2012 respectively which are annexed as Annexure – A & B to this petition and this Hon'ble Court may be pleased to condone the delay of 1 day in preferring the Appeal before respondent No.2.”
4. The brief facts of the petitioner's case is that, the petitioner is aggrieved by the order dated 3.1.2012 by which his application-appeal preferred under Section 53 of the Act has been dismissed on the ground that it was filed after expiry of period of 90 days i.e. the limitation prescribed under the Act. The petitioner has claimed that neither the delay is inordinate nor does it reflect that the petitioner was negligent in prosecuting the remedy.
5. Mr. Sanghavi, learned advocate for the petitioner, has submitted that the first adjudicating authority passed the order on 11.8.2011, which was received by the petitioner on 18.8.2011. He submitted that according to the provisions contained under Section 53 of the Act, the application-appeal was required to be filed within 90 days from the date of the order. He also submitted that since the order was received by the petitioner on 18.8.2011, the authority should have taken into consideration the said date instead of considering the date of order as the relevant date.
5.1 Mr. Sanghavi, learned advocate for the petitioner, also submitted that after receiving the order on 18.8.2011, the petitioner filed appeal/application before the competent authority under Section 53 of the Act on 11.11.2011. He submitted that considering the date on which the order was received, the appeal/application was filed within prescribed period of 90 days, however, the authority has considered date of order as the relevant date and on that ground, the petitioner's application has been rejected.
6. Mr. Yagnik, larned AGP, has submitted that the provisions under Section 53 of the Act prescribes that the appeal/application should be filed within 90 days from the date of order and that therefore, the decision of the competent authority under Section 53 of the Act of not entertaining the petitioner's appeal/application is just and correct and is in accordance with the provisions under the Act. He submitted that the competent authority does not have any power to condone the delay and that therefore, there is no error in the order dated 3.1.2012 passed by the competent authority.
7. This Court has in Special Civil Application No.13018 of 2012 vide order dated 27.9.2012 held that when the order by the first adjudicating authority is passed in absence of the noticee and/or when the order is passed sometime after the hearing is concluded and is not pronounced or passed in presence of the petitioner, then, the date of receipt of the order should be taken as relevant date for the purpose of determining limitation period under Section 53 of the Act.
7.1 In present case, it is not in dispute that the order came to be passed sometime after the hearing was concluded and it was neither passed nor pronounced in presence of the petitioner. It is also not in dispute that the petitioner received copy of the order on 18.8.2011.
7.2 Therefore, in view of the facts of the case, the date of receipt of the order should have been taken into consideration by the competent authority under Section 53 of the Act for the purpose of determining limitation i.e. to decide as to whether the application-appeal was filed within prescribed period of limitation. If the said date had been taken into account, it would have demonstrated that the appeal/application was filed within prescribed period of limitation, i.e. 90 days.
Even otherwise, if the date of the impugned order is taken into account for the purpose of calculating period of limitation, then, it emerges that the delay was of only 1 day or maximum 2 days inasmuch as the petitioner filed the appeal/application on 11.11.2011. In that view of the matter also, the petitioner is justified in contending that the delay deserve to be condoned.
8. The facts and circumstances of the case demonstrate that the petitioner cannot be said to be negligent in prosecuting his remedy. Furthermore, if the request, as prayed for, by the petitioner, is granted, then also, any prejudice is not likely to be caused to the respondent authorities.
9. Having regard to the fact that the order dated 3.1.2012 is brought under challenge in September/October-2012, the petitioner was asked to explain the delay caused in taking out present petition. In response to which, the learned counsel for the petitioner submitted that after the order dated 3.1.2012 was received by the petitioner, he had taken out review application which came to be rejected by the authority vide order dated 23.2.2012 and thereafter, application for certified copy of the order was made, but the petitioner received the certified copy only in August/September-2012 and therefore, the petitioner could not prefer present petition immediately after the order dated 3.1.2012.
10. On overall consideration of facts and circumstances of the case, it appears that present case is a fit case to accept the request and to direct the respondent authorities to decide the appeal/application dated 11.11.2011 preferred by present petitioner on merits.
10.1 Therefore, the impugned order dated 3.1.2012 is set aside and the matter is remitted to the competent authority under Section 53 of the Act for fresh decision on merits.
10.2 Learned advocate for the petitioner has submitted that 25% of the determined amount has already been deposited by the petitioner while appeal/application was tendered in the office of competent authority on 11.11.2011. Therefore, the said condition also stands complied with.
Under the circumstances, the competent authority shall take up petitioner's appeal/application for hearing and decision on merits.
The competent authority shall pass appropriate order in accordance with law and applicable Rules, policy and guidelines, after hearing the petitioner and after considering the material available on record. The competent authority shall pass appropriate order as expeditiously as possible.
10.3 It is clarified that the competent authority shall decide the appeal/application independently on its own merits and this order shall not be treated as an order expressing any opinion on merits of petitioner's case. The merits of the matter are not examined by this Court.
With the aforesaid observations and directions, present petition stands disposed of.
Direct service is permitted.
(K.M.Thaker, J.) kdc