Hon'ble Mrs. Saroj Yadav,J.
Heard Sri Q. H. Rizvi, learned Additional Chief Standing Counsel for all appellants and Sri Rakesh Pathak, learned Counsel for respondent No.1.
The instant Special Appeal has been filed with reported delay of 389 days as on 25.1.2021. The appeal is accompanied by an application for condonation of delay and an affidavit.
Learned counsel for the appellants submits that the delay in filing of the Special Appeal is genuine, bona fide and unintentional. The delay has been explained in paragraph Nos. 3, 6 and 7.
We are not satisfied with the inordinate delay in filing of the Special Appeal.
It is to be noted that as per office report, the delay in filing Special Appeal is 389 days as on 25.1.2021. The permission to contest the appeal was granted on 17.3.2020. However, no averment has been made, as to why thereafter the instant appeal could not be filed within a reasonable time. The affidavit is totally silent in this regard.
Hon'ble 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 specifically 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. In the case of Postmaster General and others Vs. Living Media India Limited and another (supra) in paragraphs Nos.27, 28 and 29 the Hon'ble Supreme Court has held as 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."
Further, in the case of State of Madhya Pradesh and others Vs. Bherulal (supra) the Hon'ble Supreme Court in paragraph Nos.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."
We have been noticing that the State Government and its authorities are in habit of filing of the writ petitions or Special Appeals challenging the orders passed by the State Public Services Tribunal or the learned Single Judge with undue delay and without making proper explanation. This practice needs to be curbed and the concerned authorities shall be careful in filing the cases within the limitation period and in case there is some delay in filing of the case, then the delay should be properly explained.
In the present case, Writ Petition No. 3754 (SS) of 1999 was filed in the year 1999 challenging the order dated 19.7.1999 imposing punishment of recovery against the petitioner. The main plea taken before the Writ Court was that the second enquiry was not permissible in law. There was no provision for holding the second enquiry under the relevant Rules. The competent authority had taken a decision on the allegations levelled against the petitioner vide order dated 9.7.1992 and the matter stood concluded. However, thereafter the authorities took a fresh decision to initiate disciplinary proceedings vide order dated 13.9.1996 and in this regard, a charge sheet was issued to the petitioner which ultimately culminated in passing of the impugned punishment order dated 19.7.1999.
Learned Single Judge, considering the submissions made by the parties' counsel, has come to the conclusion that the second enquiry was bad in law as there was no provision to hold second enquiry under the relevant Rules. In paragraph - 11 of the impugned judgment dated 27.11.2019, learned Single Judge has held as under:
"11. In view of aforesaid facts it is clear that the impugned order has been passed in second enquiry proceedings without any such provision of law and without even adhering to procedure required to be followed in enquiry proceedings."
The writ petition was allowed and the punishment order was quashed.
Learned Counsel for the appellants has not been able to show any provision under which the second enquiry is permissible. However, since we have taken note of the fact that the Special Appeal has been filed with inordinate delay and latches, we do not feel it necessary to delve into the merits of the case.
The Special Appeal is accordingly dismissed.
Order Date :- 29.1.2021 lakshman