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2011 DIGILAW 170 (CHH)

RAJESHWAR TIRKEY v. STATE OF C. G.

2011-04-29

SATISH K.AGNIHOTRI

body2011
ORDER 1. Challenge in this petition is to the order dated 02.06.2010 (Annexure P/l) passed by the Commissioner, Surguja Division, Ambikapur, District Surguja, whereby the appeal of the petitioner was dismissed on the ground of delay holding that the appeal was not filed within a period of 45 days as prescribed under the provisions of Rule 25 of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (for short 'the Rules'), but after a period of about four months. 2. The facts, in nutshell, are that the petitioner, while working as Head Master at Middle School, Bhithua, Tahsil Sitapur, District Surguja, was engaged in election work. On account of certain alleged irregularities committed by the petitioner, the District Election Officer imposed a penalty of withdrawal of one annual increment without cumulative effect by order dated 11.05.2009 (Annexure P/2). According to learned counsel for the petitioner, there against, a review application was filed before the District Election Officer on 25.05.2009. As the same was not decided in time, the petitioner preferred an appeal on 14.09.2009 against the order dated 11.05.2009 (Annexure P/2), passed by the District Election Officer. The Commissioner, without considering the case on merits, dismissed the appeal holding that the same was barred by limitation and further, on the ground that there was no application for condonation of delay and no reasons have been stated therein. 3. Shri Paranjpe, learned counsel appearing for the petitioner would rely on a decision of the Supreme Court in Union of India Vs. S.S.Gaurayya1 that pendency of the review application before the District Election Officer as sufficient reasons for condonation of delay in preferring the appeal. The Commissioner ought to have condoned the delay or afforded an opportunity of hearing to the petitioner to file an application for condonation of delay. Shri Paranjpe would further submit that the Commissioner, without affording an opportunity of hearing to make an appropriate application explaining the sufficient reasons for condoning the delay, dismissed the appeal, which is illegal and contrary to the statutory provisions of law. 4. Shri Paranjpe would further submit that the Commissioner, without affording an opportunity of hearing to make an appropriate application explaining the sufficient reasons for condoning the delay, dismissed the appeal, which is illegal and contrary to the statutory provisions of law. 4. On the other hand, Shri Thakur, learned Deputy Advocate General with Shri Ajit Singh, Panel Lawyer appearing for the State/respondent No. 1 to 3, 5 and 6 would submit that the District Election Officer passed the order imposing minor penalty of withholding one annual increment without cumulative effect for one year and the appeal preferred by the petitioner was admittedly beyond the period of 45 days. The petitioner has not preferred any application for condonation of delay stating sufficient reasons to invite jurisdiction of the appellate authority under the proviso to Rule 25 of the Rules, 1966. 5. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 6. Rule 25 of the Rules, deals with the period of limitation for appeal which clearly states that no appeal shall be entertained unless the same is filed within a period of 45 days from the date on which a copy of the order appealed against is delivered to the appellant. The proviso to Rule 25 of the Rules further provides that the appellate authority may entertain the appeal after the expiry of the said period, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time. There is no contemplation of there being a separate application for condonation of delay. 7. Even otherwise, taking a pragmatic view, the appellate authority ought to have given one opportunity to the petitioner to file an application or affidavit explaining the reasons for delay. 8. On perusal of the provisions of Rule 25 of the Rules, it is provided that an appeal shall lie within a period of 45 days from the date on which the copy of the order appealed against is delivered to the appellant. It is not clear in this case asto when the petitioner received the copy of the order dated 11.05.2009 (Annexure P/2), or it was delivered thereafter. Thus, counting the period of limitation from the date of pronouncement of the order is not relevant, but the date on which the same was delivered to the appellant, is relevant. It is not clear in this case asto when the petitioner received the copy of the order dated 11.05.2009 (Annexure P/2), or it was delivered thereafter. Thus, counting the period of limitation from the date of pronouncement of the order is not relevant, but the date on which the same was delivered to the appellant, is relevant. The appellate authority has not considered all these issues before dismissing the appeal of the petitioner on the ground of delay. 9. It is well principle of law that first appeal is a valuable right of the appellant and the same should not be dismissed on technical ground. 10. The Supreme Court, in S.S. Gaurayyal, held that delay of253 days in consideration of application for clarification which was not disposed of till the appeal before the order of the Single Judge was filed before the Division Bench, was sufficient and bona fide. Thus, the delay was condoned. 11. In State of Kerala Vs. MG. Presanna, the Supreme Court observed that delay in pursuing review can be held as bona fide prosecution of the case and the delay ought to have been treated as satisfactorily explained. 12. In view of the foregoing and for the reasons stated hereinabove, the impugned order dated 02.06.2010 (Annexure P/l) passed by the Commissioner, Surguja Division, Ambikapur, is quashed. Memo of appeal preferred before the appellate authority is restored to its original file. The petitioner is granted liberty to make an application explaining the delay in filing the appeal and the appellate authority Le. the Commissioner, is further directed to consider the same in accordance with law and thereafter, consider the case on merits, expeditiously. 13. Accordingly, the writ petition is allowed to the extent indicated above. 14. There shall be no order asto costs. Petition Allowed.