THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.A.Sr.No.73640 of 2016 and CMP No.15427 of 2017
The Management of Tamilnadu State Transport Corporation (Kumbakonam Division - II) Ltd., Periyamilaguparai, Trichirapalli .. Appellant/petitioner versus
1. The Presiding Officer, Labour Court, Tiruchirapalli.
V.Balakrishnan (died) .. Respondent
2. B.Kasthuri
3. B.Jeevamithran
4. B.Prasenna .. proposed Respondents [cause title accepted vide order of Court dated 10.08.2017 by SMKJ & VBSJ made in CMP No.12930/17 in W.A.Sr.No.73640/2016]
Prayer in Writ Appeal: Writ Appeal filed against the order dated 08.04.2008 passed in W.P.No.13436 of 1998.
Prayer in Civil Miscellaneous Petition: Civil Miscellaneous Petition filed under Section 5 of the Limitation Act, to condone the delay of 1082 days in filing the writ appeal against W.P.No.13436/1998 dt 08.04.2008.
http://www.judis.nic.in For Appellant/Petitioner : Mr.P.Paramasiva Doss
JUDGMENT
(Order of the Court was made by S.MANIKUMAR, J.) V.Balakrishnan, driver (since deceased), filed I.D.No.76 of 1994 on the file of the Labour Court, Tiruchirapalli, to set aside his termination dated 08.12.1992. Termination was for unauthorised absence. Going through the material on record, Labour Court, Tiruchirapalli ordered reinstatement in service, without back wages.
2. Being aggrieved, Management of Tamil Nadu State Transport Corporation, Kumbakonam Division II Limited, Tiruchirappalli, has filed W.P.No.13436 of 1998. After hearing the learned counsel appearing for the parties, he was restored to duty, but not paid wages, on par with his contemporary, treated as a fresh entrant. Writ Court, at paragraph No.18 in W.P.No.13436 of 1998 dated 08.04.2008, ordered, as hereunder.
"18. The workman cannot be treated as a fresh entrant and he is entitled for all the increments and allowances, arising out of various wage settlement. The management is hereby directed to compute the wages in terms of the wage settlement between the trade unions and the management together with increments and pay the arrears within a period of two months from the date of receipt of a copy of this order."
3. Being aggrieved by the above, Management of Tamil Nadu State Transport Corporation, Kumbakonam Division II Limited, Tiruchirappalli, has filed W.A.Sr.No.73640 of 2016, with a delay of 1082 days. Papers were returned by the Registry. Taking note of the death of workman, V.Balakrishnan on 29.08.2011, Management of Tamil Nadu State Transport Corporation, Kumbakonam Division II Limited, Tiruchirappalli, by adding wife, son and daughter of V.Balakrishnan, appeal papers have been represented with a delay of 1734 days, in representation. Appellant has also prayed to accept the cause title. Earlier vide order dated 10.08.2017 made in CMP No.12913 of 2017, cause title has been accepted. Delay in representation has been condoned. Now. CMP No.15427 of 2017 in W.A.Sr.No.73640 of 2016, filed to condone the delay of 1082 days, is listed. Reasons assigned in the supporting affidavit, do not satisfy sufficient cause for condoning, such a huge delay.
4. On the aspect of condonation of delay, reasons to be assigned, contents of the supporting affidavit, the Hon'ble Supreme Court, in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, has broadly culled out the principles of law to be considered in the matter of condonation and it is suffice to extract paragraph No.21 from Esha Bhattacharjee's case.
“21. From the aforesaid authorities the principles that can broadly be culled out are;
21.1. (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.
21.2. (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.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (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.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (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.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (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.
21.9. (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.
21.10. (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.
21.11. (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.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”
5. Subsequently, after considering a Hon'ble Division Bench judgment of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, reported in (1990) 1 LLN 457 and decision of the Supreme Court in Esha http://www.judis.nic.inBhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, in H.Dohil Constructions Company Private Limted V. Nahar Exports Limited and Another, reported in 2015(1) Supreme Court cases 680, Hon'ble Supreme Court, at paragraph Nos.23 and 24, held as follows:
“23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee [Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59) “21.4(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.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.8. (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.
21.9 (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 weight 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.
21.10. (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.
24. When we apply those principles to the case on hand, it has to be stated that the failure of the Respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any valid explanation, as gross negligence and lacks in bonafides as displayed on the part of the Respondents. Further, when the Respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non-furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06.09.2007, the reasons which prevented the Respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered.”
6. It is also useful to extract paragraph Nos.14 to 17 of the judgment in Tamilnadu Mercantile Bank's case.
http://www.judis.nic.in “14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the party concerned may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed period of limitation.
17.... Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non- deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. It is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?”
7. Following the guiding principles of Law, in the matter of condonation of delay, we find absolutely no sufficient cause and CMP No.15427 of 2017, is dismissed, and Writ Appeal is rejected at the SR stage itself. No costs.
8. Consequent to the dismissal of the delay excuse petition, Management of Tamilnadu State Transport Corporation Kumbakonam Division II Limited, Tiruchirappalli, is directed to compute the actual wages that ought to have been paid to Mr.V.Balakrishnan, since deceased, and other retiral benefits, as directed by the writ Court, vide order in 13436 of 1998 dated 08.04.2008, within a period of four weeks from the date of receipt of a copy of this order.
Index : No.
Internet : Yes
Note to Office:
Registry is directed to send a copy of this order to the respondents 2 to 4.
[S.M.K., J.] [M.D.I., J.] 08.09.2017 ars To The Presiding Officer, Labour Court, Tiruchirapalli.
S. MANIKUMAR, J.
AND M.DHANDAPANI, J.
ars
W.A.Sr.No.73640 of 2016 and CMP No.15427 of 2017
08.09.2017