Heard Sri Babu Lal, Standing Counsel on behalf of the petitioner and Sri S.K. Maurya, Advocate on behalf of the respondent no. 1.
Learned counsel for the parties agree that the writ petition may be finally disposed of at this stage itself without calling for any counter affidavit, in view of the order proposed to be passed today.
Executive Engineer, P.W.D., Allahabad filed an appeal under Section 17 of the Payment of Wages Act before the appellate authority. The appeal was barred by limitation by 191 days from the main order and 141 days from the order on review application. Therefore, an application was made under Section 5 of the Limitation Act for condoning the delay. The delay condonation application was supported by an affidavit disclosing the reasons, which according to the counsel for the State were bona fide. No counter affidavit was filed to the affidavit filed in support of Section 5 application and therefore the averments made in the affidavit had gone un-controverted. The appellate authority has rejected the application only after recording that it has the power to condone the delay of 120 days only.
It is not necessary for this Court to enter into the issue as to whether the power of the appellate authority to condone the delay is limited to 120 days or not, inasmuch as the Court finds that from the affidavit, filed in support of Section 5 application, the explanation, for not approaching the appellate authority within the time prescribed, was bona fide and satisfactory. This Court under Article 226 of the Constitution of India deems it just and proper and in the interest of substantial justice to hold that the delay in filing of the appeal was bona fide and therefore the petitioner cannot be non-suited even when the delay in filing of the appeal has been explained to the satisfaction of the Court.
Accordingly, the order passed by the appellate authority dated 22.10.2009 is hereby set aside. The delay in filing of the appeal is condoned. The appeal is treated to be within time and is restored to its original number. The appellate authority is directed to decide the appeal, after affording opportunity of hearing to the parties concerned, at the earliest possible, preferably within three months from the date a certified copy of this order is filed before him. Writ petition is allowed subject to the observation made. Order Date :- 13.1.2010 Pkb/