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2012 DIGILAW 102 (PAT)

Anil Kumar Jha v. State of Bihar

2012-01-17

V.NATH

body2012
V. Nath, J.-Heard Mr. Ram Suresh Roy, the learned Senior Counsel appearing on behalf of the appellant and Mr. Ajay Kumar Sharma, the learned counsel appearing on behalf of the respondents. 2. The plaintiff is the appellant in this appeal against the judgment and decree of reversal passed by 1st Additional District Judge, Saharsa in Title Appeal No. 4/94 reversing the judgment and decree passed by Additional Munsif, Saharsa in Title Suit No. 11/85 by which the suit had been decreed. 3. The plaintiff filed the suit for declaration that the defendants had no right to terminate the services of the plaintiff on the basis of the letter annexer to the plaint as Annexure-2 which was illegally, mala fide, arbitrary and for further declaration that the plaintiff had acquired the right to remain in service as Machinist according to the terms of his appointment and had right to be posted treating him to be in regular service. The plaintiff's case, in short is that he had been appointed on the post of Machinist Instructor under the orders of Director, Employment and Training, Department of Labour, Bihar, Patna vide letter dated 15.3.1998 and had been posted at I.T.I, Supaul on the vacant post till the regular vacancy was not filled up. The plaintiff joined on 18.3.1983 and performed his job satisfactorily but the defendant no. 3 issued letter dated 1.8.1985 for removing the plaintiff from the service although he had no authority to terminate the service of the plaintiff. 4. The defendants, in the written statement, accepted that the plaintiff had been appointed as Machinist Instructor but had asserted that his appointment was only a conditional appointment for a short period and his termination from services was legal and valid. It had also been asserted that after the notice of termination, the plaintiff had been removed from the service from 1.8.1985. 5. The trial court after considering the evidence, pleading and rival submissions of the parties came to the conclusion that the plaintiff was appointed on daily wages as Machinist Instructor but his appointment was conditional and had been made on the vacant post of the Machinist Instructor till appointment on regular basis on that post was not made. 5. The trial court after considering the evidence, pleading and rival submissions of the parties came to the conclusion that the plaintiff was appointed on daily wages as Machinist Instructor but his appointment was conditional and had been made on the vacant post of the Machinist Instructor till appointment on regular basis on that post was not made. It had further been held that the letter of defendant no.3-Principal, I.T.I, Supaul was illegal as he had no authority to terminate the service of the plaintiff who could have been removed only by the Director who was the appointing authority. The trial court also recorded the finding that no regular appointment on the post of Machinist Instructor had still been made and on the basis of these findings and conclusions, the trial court had held that the plaintiff had acquired a substantive right over the said 'post due to his continuity in regular service and declared him as a regular Machinist Instructor in the I.T.I, Supaul and held him entitled to be reinstated in service and get his salary as per rules. 6. In appeal by the defendant, the appellate court reappraised the evidence of the parties in view of the rival submissions and has found that the plaintiff has been allowed to work as a casual labourer at Rs. 15 per day till further order or regular appointment of a Machinist Instructor in the I.T.I, Supaul and has held that the plaintiff cannot claim to be a regular appointee on the said post. It has also been held that as regular appointment on the post of Machinist Instructor in the said institution has not been made, the plaintiff may continue on his post as Machinist Instructor at Rs. 15/- per day subject to the approval of the Government. The appellate court has also set aside the declaration by the trial court that the plaintiff was in regular service on the post of Machinist Instructor. 7. This second appeal has been admitted for hearing by order dated 18.3.1997 by this Court and the substantial question of law has been framed with regard to the validity of the judgment and decree of the appellate court when the appeal itself was barred by limitation. 8. 7. This second appeal has been admitted for hearing by order dated 18.3.1997 by this Court and the substantial question of law has been framed with regard to the validity of the judgment and decree of the appellate court when the appeal itself was barred by limitation. 8. The appellant has also filed I.A. No. 864/05 under Order 41 Rule 27 C.P.C. seeking to adduce the documents annexed with the said interlocutory application as additional evidence in this appeal. By order dated 21.5.2009, this interlocutory application was directed to be considered at the time of hearing of this appeal. 9. The learned Senior Counsel appearing on behalf of the appellant has firstly submitted that the appeal in the court below was filed after a delay of more than three years and there was no sufficient ground mentioned in the condonation petition by the appellants which could have justified the condonation of delay. It has been urged that the knowledge of the judgment and decree of the trial court to the defendants (appellants in the court below) has been accepted in this case and therefore the fault on the part of the lawyer or a Government authority cannot be taken to be• sufficient cause for condonation of delay. It has also been contended that the appellate court has not exercised its discretion in judicial manner and has wrongly condoned the delay. On the merits of the case of the plaintiff, the learned Senior Counsel has urged that admittedly when the plaintiff has been in service for a pretty long period right from 1983 and is still in service, a sympathetic view should be taken and he should be declared to be in regular service. Pressing the prayer for adducing additional evidence as made in I.A. No. 864/05, it has been submitted that the documents annexed thereto are relevant and crucial for just decision of the controversy and should be taken in evidence. 10. Per contra, the learned counsel appearing on behalf of the defendants has submitted that the defendants, in their condonation petition filed in the appeal, had given valid ground and explained sufficient cause for the condonation of delay and the appellate court below after considering the entire facts and circumstances of the case, after being satisfied with the explanation of the defendants, had condoned the delay. As such it has been submitted that the discretion exercised by the appellate court below should not be interfered in second appellate jurisdiction as there is no question of law much less a substantial question of law involved in this regard. It has also been urged that while considering the prayer for condonation of delay on behalf of Government authority or bodies, certain amount of latitude should be granted in view of the factors involved in functioning of the Government authorities. It has also been contended that the appellate court below has recorded the findings of fact after considering the rival evidence of the parties and the documents sought to be adduced as additional evidence through I.A. No. 864/05 are not at all relevant and have all been placed before the appellate court below and therefore there is no merit in the prayer for allowing additional evidence. 11. It is not in dispute that the T.A. No. 9/94 had been filed after the delay of more than three years. However a petition for condonation of delay had also been filed alongwith the memo of appeal explaining the reasons for the delay and praying for condonation of the same. The condonation petition was also accompanied with the verification and affidavit. From the records, it appears that the appeal was admitted for hearing and the delay was condoned at the time of admission of the appeal subject to the objections which might be raised by the respondent at the time of hearing. In the impugned judgment, the appellate court below has considered in detail the explanation submitted by the appellants therein and it has been held that the Director or the concerned higher officials of the Government were not informed and communicated regarding the judgment and decree of the trial court by the Government Pleader and the Principal of the I.T.I., Supaul within time. After considering the relevant facts and circumstances, the appellate court had condoned the delay in filing the appeal. It is true that the Government as a party to a litigation cannot be treated differently from any other litigant but simultaneously keeping in view the functioning of the Government, the facts and circumstances leading to the delay will have to be considered a bit differently. It is true that the Government as a party to a litigation cannot be treated differently from any other litigant but simultaneously keeping in view the functioning of the Government, the facts and circumstances leading to the delay will have to be considered a bit differently. In the case of G. Ramegowda vs. The Special Land Acquisition Officer, Bangalore reported in AIR 1988 SC 897 , the Hon'ble Supreme Court while considering this aspect has observed as follows:- "...In litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals..." It has been further observed:- ".... Therefore, in assessing what, in a particular case, constitutes "sufficient cause" for purposes of Section 5 it might, perhaps, be some what unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered as they are, by a considerable decree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible..." 12. The decision of the appellate court below, in condoning the delay in the present case, has proceeded on the line of the aforesaid observations of the Apex Court. It is well settled that the condonation of delay is the discretionary power of the Court fettered only by the rule that the discretion must be exercised judicially. Nothing has been pointed out to show that the discretion exercised by the appellate court below in condoning the delay was arbitrary and the discretion had been illegally or irregularly exercised. From the order sheet of the Title Appeal No. 4/ 94 it also appears that the present appellant who was respondent in the said appeal had filed a petition on 17.4.1995 contesting the claim of the appellants for condonation of delay and praying for the rejection of the limitation petition. From the order sheet of the Title Appeal No. 4/ 94 it also appears that the present appellant who was respondent in the said appeal had filed a petition on 17.4.1995 contesting the claim of the appellants for condonation of delay and praying for the rejection of the limitation petition. As such it is held that there is no infirmity in the condonation of delay by the appellate court, which has been done after hearing the parties, and there is no force in the submission on behalf of the appellant in this regard. 13. The I.A. No. 864/05 has been filed by the appellant for adducing some documents annexed thereto as additional evidence. It had been stated in the said petition that some of these documentary evidence could not be produced in the appellate court below even after exercise of due diligence. However, it appears from the records of T.A. No. 4/94 that most of the documents had been filed by the appellant in the appellate court below alognwith the list of documents dated 28.6.1995 and only the documents after the year 2001 (annexed with this interlocutory application) do not obviously find mentioned in the said list. In the interlocutory application the appellant has not specified as to which document was not within his knowledge and which document could not be produced by him in the appellate court below in spite of exercise of due diligence. It appears from the judgment of the appellate court below that the material documentary evidence required for determining the issues arising in the suit were already before the court. The real controversy in this case is regarding the nature of appointment of the appellant and the relevancy of the document sought to be adduced by way of additional evidence (except those which were filed before the appellate court) could not be established. It is well settled that additional evidence cannot be permitted at the appellate stage when the appellate court can pronounce the judgment even without such evidence and the additional evidence cannot be allowed for the purpose of pronouncement of judgment in a particular manner as laid down by the Apex Court in the decision reported in 2006(9) SCC 772 . After going through the documents, which were not filed before the appellate court, their relevancy for determining the issues arising in the suit is not established. After going through the documents, which were not filed before the appellate court, their relevancy for determining the issues arising in the suit is not established. Most of the documents only show that the plaintiff appellant is performing his duties, which is obvious also in view of the direction in the impugned judgment. Thus, it is held that the documents sought to be adduced as additional evidence are not at all necessary for pronouncing judgment in this appeal and accordingly, the I.A. No. 864/05 is rejected. 14. It has also been submitted on behalf of the appellant that in view of his long service on the post of Machinist Instructor in I.T.I, Supaul, a sympathetic view should be taken and he should be declared to be a regular employee on the said post. The jurisdiction of a second appeal is very limited and there is no scope for deciding a second appeal on sympathetic ground. Moreover, the appellate court below 'has already taken a sympathetic view by allowing the appellant to work on his post in terms of his appointment as a casual labourer on daily wages till no Machinist Instructor is appointed on regular basis on the said post. 15. For the foregoing reasons and discussions, it is held that the appellate court below has committed no error or illegality in condoning the delay in filing the appeal before it and the substantial questions of law is answered in negative against the appellant. As a result, this second appeal is dismissed and the judgment and decree passed by the appellate court below is upheld.