Hon'ble Dinesh Kumar Singh,J.
1. Present review application has been filed by the State seeking review of the judgment and order dated 01.08.2018 passed by a coordinate Bench of this Court in Writ Petition No.31258(SB) of 2017, which was preferred by the State, review applicant against the order dated 20.04.2017 passed in Claim Petition No.24 of 2005 preferred by respondent No.1.
2. The present review application has been filed with a reported delay of 1219 days as on the date of filing. In the affidavit filed in support of the application for condonation of delay, it has been stated that the Standing Counsel vide his letter/opinion dated 09.05.2019 suggested for filing the review application against the judgment and order dated 01.08.2018. Thereafter, the matter was placed before the Departmental Review Committee, which in its meeting dated 02.08.2019 recommended for filing the review application.
3. Law Department vide order dated 26.09.2019 granted permission for filing the review application. Thereafter, Joint Commissioner (High Court Works), Commercial Tax, Lucknow vide letter dated 03.09.2020 referred the matter to the learned Chief Standing Counsel, High Court, Lucknow Bench, Lucknow for taking appropriate action regarding filing of this review application.
4. Commercial Tax Officer, Ghaziabad contacted the office of Chief Standing Counsel on 01.03.2021. Thereafter, COVID-19 pandemic lock-down was enforced and, therefore, delay has been caused in filing the review application.
5. From the fact as stated in the affidavit, it is evident that from 10.08.2018 to 22.03.2021, time has been taken only in giving intradepartmental instructions for filing the review application. Explanation coming forth in the affidavit filed in support of the affidavit for condonation of delay is totally unsatisfactory and does not meet the requirement of explaining inordinate delay and latches in filing the review application.
6. The Supreme Court in the cases of Postmaster General and others Vs. Living Media India Limited and another, (2012) 3 SCC 563 and State of Madhya Pradesh and others Vs. Bherulal, (2020) 10 SCC 654 has held that reasonable explanation for delay has to be furnished by the appellants even if it is a state entity. It has been further held that mere inter-departmental communication between the authorities is not enough to condone the delay of such nature. Paragraphs 27, 28 and 29 of the judgment rendered in the case of Postmaster General and others (supra) are extracted herein-under:-
"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
7. Further, in the case of State of Madhya Pradesh and others Vs. Bherulal (supra) the Hon'ble Supreme Court in paragraphs 5, 6 and 7 has held as under:-
"5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.
6. We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.
7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible."
8. In view of the aforesaid, we are of the view that this review petition has been filed with considerable delay and latches without any plausible or reasonable explanation and, therefore, we do not deem it fit and proper to condone the delay, hence the application for condonation of delay in filing the review petition is rejected.
9. Once, we have dismissed the application for condonation of delay normally, we would not have dealt with matter on merit but the facts of the case and the casual manner in which the review application has been filed after a delay of 1219 days, we would like to deal with the case on merit as well.
10. Respondent No.1 and one Gurwar Singh from whom, he took charge of Senior Assistant in the office of Assistant Commissioner, Sales Tax, Ghaziabad, were charge-sheeted and recovery notice for Rs.60,000/-, the amount of two bank guarantees taken from M/s Chequingum Ltd., Ghaziabad and M/s D.N. Confectionery, which were not renewed after their expiry, was issued against them.
11. The Department passed order of punishment and for recovery of Rs.30,000/- from respondent No.1. Said order was challenged by respondent No.1 by filing Claim Petition No.1414 of 2002 before the State Public Services Tribunal, Lucknow.
12. The Tribunal vide order dated 20.08.2013 set aside the order of punishment dated 28.02.2002, the order on appeal dated 23.10.2002 as well as order dated 30.04.2002 for recovery of said amount of Rs.30,000/- in installments from respondent No.1.
13. Against the order dated 20.08.2013 passed in Claim Petition No.1414 of 2002 by the State Public Services Tribunal, the State had come before this Court in Writ Petition No.238(SB) of 2014. The said writ petition filed by the State was dismissed vide order dated 29.05.2017 inter alia observing as under:-
"When proceedings for major penalty is initiated and inquiry is conducted by appointing inquiry officer, it is incumbent upon inquiry officer to hold oral inquiry and mere fact that ultimately only minor punishment was imposed though without holding of oral inquiry would not rectify serious failure on the part of inquiry officer. This aspect has already been considered by a Division Bench of this Court in Sohan Lal Vs. U.P. Co-operative Federation Ltd. & Another, 2013(6) ADJ 250 where in para 34 of the judgment Court said:
"34. We are clearly of the view that the ultimate result shall not govern the manner of preceding disciplinary proceedings inasmuch as the authorities, if found no proof of serious charges to justify major penalty, therefore, imposed minor penalty, it would not distract from the fact that proceedings were initiated for major penalty and despite denying adequate opportunity to delinquent employee, i.e., by not holding oral inquiry, he was able to show shallowness of charges which satisfy the disciplinary authority that major penalty is not warranted. If adequate opportunity would have been afforded to delinquent employee, he could have demonstrated that no penalty whatsoever is liable to be inflicted upon him, since, the charges in entirety, are baseless etc. It is the inception of proceedings which will govern the manner of disciplinary proceedings to be conducted and not the ultimate result. Therefore, mere fact that lastly only minor penalty could have been inflicted upon petitioner, would not dilute his legal right that disciplinary inquiry when initiated must have been held in conformity with procedure prescribed, attracting provisions, applicable at the inception of inquiry."
When confronted with aforesaid exposition of law, learned Standing Counsel could neither place before us any other binding authority taking a different view in the matter nor could distinguish aforesaid judgment. We find that the view taken by Tribunal is consistent with law laid down in the aforesaid judgment.
Accordingly, we do not find any error apparent on the face of record warranting interference in writ jurisdiction.
Writ petition lacks merit. Dismissed.
Interim order, if any, stands vacated.""
14. It appears that Mr.Gurwar Singh from whom respondent No.1 took charge of Senior Assistant made a representation against recovery of Rs.30,000/-, which was ordered to be recovered from him. The said representation was allowed. However, in the case of the petitioner punishment order dated 02.11.2004 was passed imposing censure entry in his service record. The order dated 02.12.2004 was issued for recovery of Rs.30,000/- from respondent No.1. Representation of respondent No.1 was rejected vide order dated 21.04.2005. Said three orders were challenged by respondent No.1 by filing Claim Petition No.24 of 2005.
15. The Tribunal vide order dated 20.04.2017 allowed the said claim petition filed by respondent No.1 on the ground that when the Tribunal vide order dated 20.08.2013 had already quashed the order of recovery, no fresh order for recovery could have been passed and the order for awarding censure entry was also bad. The Tribunal, therefore, quashed the orders dated 02.11.2004, 02.12.2004 and 21.05.2005.
16. The said order was challenged by the State in Writ Petition No.31258(SS) of 2017 which was dismissed vide order dated 01.08.2018. Following grounds have been taken in the writ petition:-
"A. Because, the finding recorded by the learned Tribunal is perverse regarding order dated 02-12-2004.
B. Because, the learned Tribunal had not adjudicated the recovery order dated 02-12-2004 independently.
C. Because, the learned Tribunal has wrongly relied upon its earlier order dated 20-08-2013 with relates to recovery imposed upon the Claim Petitioner on account of recovery order dated 28-02-2002.
D. Because, the learned Tribunal has not adjudicated the case on merits.
E. Because, the order passed by the learned Tribunal is absolutely mechanical in nature and deserves to be set aside."
17. Thus, the matter of recovery of Rs.30,000/- from respondent No.1 was quashed by the Tribunal vide order dated 20.08.2013 and, thereafter, vide order dated 20.04.2017 as well as by this Court vide judgment and order dated 29.05.2017 passed in Writ Petition No.238(SB) of 2014 and, thereafter, order dated 01.08.2018 passed in Writ Petition No.31258(SB) of 2017. Despite aforesaid the case has been kept alive for 20 years by the Department. It had approached this Court on two previous occasions and now 3rd time with the review application.
18. We are surprised to note that advise has been given for filing the review application in this matter and, the review application has been filed with an inordinate delay of 1219 days. The State is the biggest litigant before this Court and, we have observed in our judgment and order dated 07.07.2021 passed in Special Appeal Defective No.220 of 2021 that the Court's precious time should not get wasted in trivial matters. We have also pointed out the modalities for filing/contesting a case by the State before this Court in the aforesaid judgment.
Relevant part of the aforesaid judgment is extracted hereunder:-
"22. We are perplexed to find that despite the opinions given by the learned Additional Chief Standing Counsel and the Law Department against filing of the special appeal, the Administrative Department over ruled these opinions and decided to file the special appeal. The Law Department is headed by senior District Judge, who is the Legal Remembrancer and principal legal adviser to the Government. The opinion expressed by the Legal Remembrancer has to be given weightage and should have some sanctity. If the Administrative Department is of the opinion that some aspects of the matter have not been considered by the Law Department in its opinion, then the matter should be sent back to the Law Department to re-consider its opinion and, if the Law Department thereafter, opines for filing the case, then only the case should be filed.
23. Part-II of the Legal Remembrancer Manual deals with the procedure to be adopted in advisory work by the Legal Remembrancer. Rule 64 specifies the matters on which Legal Remembrancer's advice is to be sought. It is specifically provides that opinion of the Legal Remembrancer is to be sought in cases where disputes have arisen or likely to arise between the Government or other person or action in a Court of law is taken against the Government. Thus, it is the Legal Remembrancer, who is clothed with the authority of giving opinion regarding contesting/filing of cases in the Court of Law.
24. In the present case, when we ask Sri Awanish Kumar Awasthi, Additional Chief Secretary/Principal Secretary (Home) that if the Administrative Department was not in agreement with the Law Department, then why the matter could not be referred back to the Law Department to re-consider its opinion taking into account certain aspects, which in the opinion of the Administrative Department, were not taken into consideration by the Law Department while advising against filing of the special appeal. Sri Awasthi accepted that it was a mistake on the part of the Administrative Department and, he regretted that such a course of action was not taken by the Administrative Department before deciding to go ahead for filing the special appeal. He has further said that in future the Administrative Department shall be careful and this mistake would not be committed.
25. We are of the opinion that the Court proceedings should not be used to satisfy ego of some official(s) of the State Government. The Government is the biggest litigant and, therefore, decision to file a case on behalf of the Government should be taken only when it is sure of merit of the case and not otherwise to satisfy ego of the some Government functionary. There is huge pendency of cases. The Court's precious time should not go wasted in such cases, which are filed to take a chance or otherwise to satisfy one's ego."
19. Considering the casual approach of the State in which Court proceedings have been undertaken in a trivial matter like the present one, we dismiss this review application on merit and impose a cost of Rs.10,000/-, on the review applicant-State, to be deposited with Army Battle Casualty Welfare Fund within a period of four weeks from today.
Order Date :- 16.8.2021 prateek