Hon'ble Manish Mathur,J.
Heard learned Advocate General assisted by Mr. Manjive Shukla, learned Additional Chief Standing Counsel for petitioners.
In view of the order being passed, notice to opposite party is dispensed with.
Petition has been filed against the judgment and order dated 11.11.2016 passed in Claim Petition No.793 of 2016 whereby the opposite party's claim petition has been allowed treating him to be in regular service and with a direction to the State authorities to consider the grant of service benefits to claimant along with post-retiral benefits with interest at the rate of 8% for the delayed payment.
The facts of the case as indicated in the memorandum of petition indicates that opposite party/claimant was initially engaged as a Seasonal Collection Peon in the month of September, 1982. Subsequently, his engagement was terminated at the end of the season due to which he along with other Collection Peons filed Writ Petition No.8322 of 1989 (S/S) in which this Court vide interim order dated 22.05.1990 permitted the petitioners of the said writ petition to be allowed to work and be paid their salary in accordance with rules. Apparently the opposite party/claimant was continued in service in terms of the interim direction passed in the writ petition. It is stated that subsequently the writ petition was disposed of vide order dated 31.01.2011 directing the authorities to consider the case of opposite party/claimant for regularisation.
It is submitted that after passing of the judgment and order dated 11.11.2016 in the claim petition, the opposite party/claimant had filed contempt petition before the Tribunal in which notices were issued and purportedly in compliance of directions of the Tribunal, the authorities rejected petitioner's claim vide order dated 21.02.2017, which was produced in the contempt proceedings.
It has been further submitted by learned counsel for petitioner that the Tribunal has erred in passing the impugned judgment and order in view of the fact that the opposite party/claimant was never appointed as a regular Collection Peon and his services throughout remained as that of a Seasonal Collection Peon. It is submitted that the Tribunal has ignored the submission of the authorities that there was no order for regular appointment of opposite party/claimant and therefore there was no occasion to have passed the said order. It has been submitted that the order of Tribunal has been passed only on the ground of an entry in the service book of opposite party/claimant indicating him to be in regular service. It is submitted that the said entry could not have been taken cognizance of by the Tribunal since it had been submitted that the said entry was made due to inadvertent error.
It is to be noticed that as per the averments made in the writ petition, after passing of impugned judgment and order dated 11.11.2016, the petitioners have already complied with the directions of the Tribunal vide order dated 18.08.2018 whereby Pension Payment Order has been issued and pension and gratuity has already been paid to opposite party/claimant and as of now the contempt proceedings are pending before the Tribunal only for the purpose of payment of interest on delayed payment.
It is also to be noticed that in the impugned judgment and order, Tribunal has considered the fact that the opposite party/claimant has been accorded service benefits right from 1993 such as leave encashment, grant of benefits of V and VI Pay Commissions and other due increments in his salary. On the basis of said facts, the Tribunal has reached a conclusion that the services rendered by opposite party/claimant from 1990 till his date of superannuation in 2015 has been rendered as a regular Collection Peon. The Tribunal has also noticed the fact that in the service book for the years 2004-05, the claimant has been indicated as a Collection Peon and not as a Seasonal Collection Peon.
From the material on record it is not evident that the petitioners have made any effort to correct the entry made in service book of opposite party/claimant which as said to be made inadvertently. Thus, the Tribunal came to a conclusion that the authorities themselves treated the opposite party/claimant to be a regular employee.
Be that as it may, a perusal of the petition itself makes it clear that the petitioners were aware with regard to passing of the impugned judgment dated 11.11.2016 in the year 2017 itself when they filed their objections in the contempt petition. The petition itself indicates that the petitioners were continuously represented before the Tribunal in the proceedings and as such there is no occasion for the petitioners to challenge the judgment dated 11.11.2016 at such a belated stage in the year 2021, particularly when the petitioners themselves have now granted the service benefits to opposite party/claimant although the direction by the Tribunal was only for consideration.
Hon'ble the Supreme Court in the cases of Postmaster General and others v. Living Media India Limited and another; (2012) 3 SCC 563 and State of Madhya Pradesh and others v. 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(supra), Hon'ble the 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 v. Bherulal (supra) the Hon'ble Supreme Court has held in paras 5, 6 and 7 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."
In view of aforesaid, we are of the considered opinion that there is no occasion for us to grant indulgence in the writ petition which is consequently dismissed at the admission stage on the ground of delay and laches.
Order Date :- 11.2.2021 kvg/-