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2016 DIGILAW 898 (CAL)

State of West Bengal v. Pranab Kumar Maity

2016-11-21

MIR DARA SHEKO, RAKESH TIWARI

body2016
JUDGMENT : Rakesh Tiwari, J. The appeal is preferred aggrieved by the judgment and order dated 3rd December, 2013 passed in writ petition no. W.P. 33892(W) of 2013 (Pranab Kumar Maiti and ors. v. The State of West Bengal and ors.). 2. It appears from record that the appeal was filed without certified copy of the judgment and order. The Court on 14.8.2016 granted leave to the learned Counsel for the appellants to file the appeal without the certified copy of the order. The leave granted is noted on the back of the last page of the memo of appeal. It reads - "Leave is granted to file without certified copy with undertaking to produce certified copy of the Order at the time of moving the application within the period of limitation." 3. The appeal was taken up by this Court on 20.8.2014 wherein the following order was passed on the delay condonation application. "This Mandamus appeal is filed against an order passed by the Learned Single Judge of this Court on 3rd December, 2013 in W.P. No.33892(W) of 2013. The appeal is a defective one. Certified copy of the impugned order has not yet been filed. Since the Memorandum of appeal was not presented within the prescribed period of limitation, the appellants have filed an application for condonation of delay. It was stated therein that the appellants came to know about the order of the Learned Trial Judge on 17th February, 2014 when the concerned authority received the Learned advocate's letter dated 3rd December, 2013 whereby the order of the Learned Trial Judge was communicated to the concerned authority. It was further alleged therein that immediately thereafter the concerned authority viz. District Inspector of Schools (SE), by his letter dated 17th April, 2014 sent a proposal to the Commissioner of School Education for preferring an appeal against the judgment and order dated 3rd December, 2013 passed by the Learned Trial Judge. It was further alleged therein that after examining the proposal sent by the District Inspector of Schools (SE) by his letter dated 17th April, 2014, the Commissioner of School Education instructed the said District Inspector of Schools (SE) to prefer an appeal. It is only thereafter steps were taken for preferring the appeal and ultimately lawyer was engaged on 3rd July, 2014 and the instant appeal was filed on 4th July, 2014. It is only thereafter steps were taken for preferring the appeal and ultimately lawyer was engaged on 3rd July, 2014 and the instant appeal was filed on 4th July, 2014. We have considered the averments made in the application for condonation of delay. We are not satisfied with the explanation which was given by the State-appellants, for condonation of delay as we find that the impugned order was passed by the Learned Trial Judge in the presence of the learned advocates representing the State-respondents before the Learned Trial Judge. In our view, it was the duty of the learned advocate of the State-respondents to communicate the order which was passed in the said matter to his client. If there is any negligence on the part of the learned lawyer, we cannot help the State-appellants by condoning such a long and inordinate delay on the flimsy ground made out by the appellants in the application for condonation of delay. However, Mr. Ganguli, Learned advocate appearing for the appellants prays for leave to file a supplementary affidavit for bringing further materials on record in support of their prayer for condonation of delay. Considering such prayer, we grant leave to the State-appellants to file a supplementary affidavit in connection with the application for condonation of delay by 27th August, 2014. In case the appellants file a supplementary affidavit upon the respondents and/or their Learned advocate immediately thereafter. Leave is granted to the respondents to file affidavit-in-opposition to the section 5 application as well as supplementary affidavit, if any filed, by 3rd September, 2014. Reply thereto, if any, be filed by the appellants by 8th September, 2014. Let this matter appear in the list on 9th September, 2014 under the heading 'Application'." 4. Thereafter, on the next date i.e. on 29th October, 2014, Counsel for the appellant invited attention to the Court to the judgment delivered by the learned Single Judge of this Court on 1.3.2011 in W.P. No. 1163(W) of 2008 (Arya Samaj, Kolkata & ors. v. State of West Bengal & ors.) to show that the conclusion drawn by the learned Trial Judge in the impugned judgment in that case is in conflict with the decision passed by the other learned Judge in writ petition aforesaid. v. State of West Bengal & ors.) to show that the conclusion drawn by the learned Trial Judge in the impugned judgment in that case is in conflict with the decision passed by the other learned Judge in writ petition aforesaid. According to the Counsel, since both the aforesaid orders were passed concerning a common educational institution, these conflicting orders could not be implemented, for the reasons that two inconsistent orders cannot operate in the same field. The Counsel on the aforesaid delay condonation application submitted that merit of the appeal may also be seen along with the delay condonation application in consonance with the judgments of the Apex Court, particularly in order to avoid conflict of decisions in the same field with regard to the same educational institution. 5. The Court in the aforesaid circumstances felt necessity of further hearing on the application for condonation of delay. The matter was thus fixed for hearing on 18th November, 2014 on which date it was passed over on the request of the learned advocate for the respondents. The case was then again adjourned on 13th January, 2016 and on 26th September, 2016 on request of the learned Advocates. 6. On 27th September, 2016 when the case was taken up, the Court found that the State of West Bengal, and the Joint Secretary, School Education Department and Commissioner of School Education, Government of West Bengal are the respondents. It, therefore, directed the Registry to send copy of the order to the learned Advocate General of the State for taking appropriate steps if the State of West Bengal is at all interested to proceed with the appeal. The matter was thereafter adjourned on 8th November, 2016 on the joint request of both the learned Counsel for the parties and has thus now appeared before this Court. 7. Counsel for both the parties are present before us to argue on the delay condonation application. 8. Sri Laxmi Gupta Learned Additional Advocate General assisted by Mr. Sadananda Ganguly, learned Additional Government Pleader and Mr. S.N. Biswas, learned Advocate, submitted that the appellant-State has filed supplementary affidavit as directed by this Court giving better particulars in the condonation of delay application. 9. 8. Sri Laxmi Gupta Learned Additional Advocate General assisted by Mr. Sadananda Ganguly, learned Additional Government Pleader and Mr. S.N. Biswas, learned Advocate, submitted that the appellant-State has filed supplementary affidavit as directed by this Court giving better particulars in the condonation of delay application. 9. Learned Counsel for the appellant would argue that learned Trial Judge had disposed of the writ petition filed by the respondents vide order dated 3rd December, 2013 which was communicated by the learned Advocate vide letter dated 10th February, 2014. The office of the District Inspector of Schools (SE), Purba Medinipur also received the same on 17th February, 2014. The District Inspector of Schools then by means of his letter dated 24th February, 2014 requested the Legal Remembrancer, Government of West Bengal to obtain the certified copy of the impugned order dated 3rd December, 2013, he thereafter sent letter dated 17th April, 2014 to the Commissioner of School Education, Government of West Bengal proposing for filing appeal against the impugned judgment and order aforesaid. 10. It is in this backdrop that we are to consider the delay condonation application. 11. In paragraphs 8 to 13 of the supplementary affidavit it is averred that the District Inspector of Schools (SE), Purba Medinipur again sent the reminders on 24.4.2014 and 21.5.2014 for taking decision on filing of appeal. Thereafter, all the documents relating to the case were sent to the learned Legal Remembrancer on 17.7.2014 by the School Education Department. The memorandum of appeal was then drafted on 4.7.2014 along with stay application and was sent to the concerned District Inspector of School on 7.7.2014, who after vetting the draft of memorandum of appeal, stay application along with the Section 5 application, approved the same on 14.7.2014 and dispatched it to the Government advocate on 16.7.2014. Hence the appeal was filed on 14.8.2014. Thus the delay of 223 days in filing the appeal has occurred. 12. It is argued that this decision of the Government to file an appeal was collective and institutional decision and as such some time was required at each stage of the decision making process for filing the appeal. Hence the appeal was filed on 14.8.2014. Thus the delay of 223 days in filing the appeal has occurred. 12. It is argued that this decision of the Government to file an appeal was collective and institutional decision and as such some time was required at each stage of the decision making process for filing the appeal. It is stated that in the instant case, after taking opinion of the Legal Remembrancer this instant appeal was filed before this Court without any further delay and therefore, no laches or negligence on the part of the appellants in filing of the instant appeal, as such the delay condonation application is liable to be allowed. 13. Learned Counsel would also argue that delay in filing the appeal is unintentional as is apparent from the fact averred in the supplementary affidavit, which would show that the positive effort was made by the appellants for filing the instant appeal as early as possible. In support of his contention, learned Counsel has relied upon the paragraph 27 of the judgment rendered by the Apex Court in the case of State of Assam & ors. v. Susrita Holdings Pvt. Ltd., reported in A.I.R. 2014 S.C. 2307. Paragraph 27 reads thus - "27. It has been held by this Court in the case of G. Ramegowda, Major and Ors. v. Special Land Acquisition Officer, Bangalore that : '15. 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. xxxx xxxx xxxx 17. Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of Section 5, it might perhaps, be somewhat unrealistic to exclude from the considerations 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 degree of procedural red tape in the process of their making'. Therefore, regarding the matter of delay in this case, we are inclined to observe that the malfunctioning of the State Government regarding the unpardonable lackadaisical attitude towards pursuing matter in the court of law cannot be the reason for loss of public property, which involves public money and causes loss to the public exchequer. Therefore, we feel that it is a fit case to exercise our discretionary power to condone the delay in filing the writ appeal in the interest of public at large as the High Court has failed to do so. We therefore, condone the delay in filing the Review Petition by the appellants before the High Court in the larger interest of public. However, this case should not set a precedent to justify inordinate delays on the part of the State Government to file appeals or any other legal proceedings required to be filed within the period of limitation prescribed in law." 14. In the aforesaid case, the legal issue before the Court for consideration was whether the appellants lawfully cancelled the tender process in relation to the property in question in view of the discrepancies crept in the process of transfer of the land in favour of the respondent? 15. It is apparent from the reading of the judgment rendered in the case of State of Assam (supra) that matter involved therein was involving public money and after considering the facts and circumstances of the case the Court came to the conclusion that delay was liable to be condoned. The facts of this case are clearly distinguishable on facts of law from the circumstances of aforesaid case in which while considering Section 5 application it was held :- "unpardonable lackadaisical attitude of the Government towards pursuing matter in Court of law cannot be reason for loss of public property". 16. Per contra, learned Counsel for the respondents would argue that on consideration of the delay condonation application, the Court in this case had earlier found, that no sufficient case was shown by the appellants for condoning the delay. However, it granted further opportunity to the State in order to do justice for explaining delay by filing a better affidavit on facts explaining the laches from the date when the Government machinery was set in motion after the impugned judgment and order dated 13.12.2013. 17. However, it granted further opportunity to the State in order to do justice for explaining delay by filing a better affidavit on facts explaining the laches from the date when the Government machinery was set in motion after the impugned judgment and order dated 13.12.2013. 17. He further submits that in the supplementary affidavit only three more paragraphs have been added in the delay condonation application filed earlier. These added paragraphs also did not show any cause much less sufficient cause. It is stated that even the supplementary affidavit does not show any cause or explanation or justify the time lapse in filing of the appeal with great delay. 18. The Counsel for the respondent would argue that only mentioning the dates, without showing the actual efforts made during the period of delay is not sufficient. Explanation does not show as to how the delay or laches had actually occurred during the dates mentioned. 19. Reliance has been placed by the respondent in support of his above contention on paragraphs 25 to 30 of the judgment delivered by Apex Court in Post Master General and ors. v. Living Media India Limited and Anr., reported in (2012)3 S.C.C. 563 . 20. For ready reference paragraphs 25 to 30 read thus - "25. We have already extracted the reasons as mentioned in the 'better affidavit' sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster v. Living Media India Ltd. as 11.9.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 8-1-2010 and the same was received by the Department on the very same day. There is no explanation for not applying for the certified copy of the impugned judgment on 11-9-2009 or at least within a reasonable time. The fact remains that the certified copy was applied for only on 8-1-2010 i.e. after a period of nearly four months. 26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person-in-charge has filed any explanation for not applying the certified copy within the prescribed period. The fact remains that the certified copy was applied for only on 8-1-2010 i.e. after a period of nearly four months. 26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person-in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps. 27. It is not in dispute that the persons 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 bona fides, 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. 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 bona fide 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. 30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay." 21. He states that these paragraphs show that the facts and circumstances are exactly similar to the present one as such delay is liable to be condoned. 22. In rebuttal, learned Additional Advocate General has submitted that in a catena of decisions it has been held that while deciding the delay condonation application merit of the case may also be seen prima facie so that a meritorious case may not be dismissed by the Court only on the ground of limitation. He has also argued that in similar matter, a divergent view as stated above, was taken by this Court and therefore, the appeal may be admitted. He then proposed that the Court may levy cost upon the State and condone the laches. 23. We have considered the arguments of the learned Counsel for the parties. 24. He has also argued that in similar matter, a divergent view as stated above, was taken by this Court and therefore, the appeal may be admitted. He then proposed that the Court may levy cost upon the State and condone the laches. 23. We have considered the arguments of the learned Counsel for the parties. 24. As regards the cost is concerned, we made a query from the learned Counsel for the appellant to reveal the name of the officers who caused laches on their part so that the cost may be imposed upon them as proposed by him and the State may not have to suffer due to inaction of its officers. But he is reluctant to divulge us the names and submits that without naming the officers involved cost may be imposed by the Court. 25. We are not in agreement to such a proposal for imposing cost without basis as the persons, who are in judicial department of the State know the limitation prescribed in various Act for preferring an appeal. It is the daily routine. An officer charged with such work of noting grant of approval, preparation of appeal etc. If an employee/officer does not perform his duty efficiently knowing the time limit fixed under the statute in a particular case is expiring due to his inaction then should the cost be imposed upon such a person merely on the asking of the Counsel for the State Government? The answer is yes, as such a person should be made to realise that he has to take in his work and perform his duties honestly, with sincerely and efficiently. 26. In the case of Postmaster General and ors. (supra) in paragraphs 25 to 30 the Court therein considered the practical difficulty of the State in the facts and circumstances of that case. The State is the biggest litigant, having all legal experts who are aware of limitation to file a petition or an appeal within time stipulated in the law but they do not do so. Such attitude of the department is certainly not due to lack of paraphernalia or lack of funds. The State is the biggest litigant, having all legal experts who are aware of limitation to file a petition or an appeal within time stipulated in the law but they do not do so. Such attitude of the department is certainly not due to lack of paraphernalia or lack of funds. Therefore, the law department of the State as any other litigant is to file appeals within the stipulated time prescribed so that there may not be any need of sending reminders to the deadwood and lethargic officers reminding them that a particular appeal is to be filed within the time-frame of limitation. 27. The decision in the case of Postmaster General (supra) also shows that lethargy and inaction on the part of the Government machinery do not make any difference in consideration of the application for condonation of delay than for an individual. It may be noted that an individual may not be able to file an appeal in time for his financial difficulty or otherwise he may not be able to contact or engage a lawyer so readily available to the State. Our constitution provides that Government is for the people, of the people and by the people. It must not forget that the people of the country elect the Government and therefore the Government officials who are paid from public money should be more responsible towards public at large, particularly in performance of their duties. 28. It is apparent from the supplementary affidavit that the Government Advocate did not provide a copy of the order to the District Inspector of Schools concerned during the period from 3.12.2013 to 10.2.2014. Furthermore, we do not find as to what was the reason for the District Inspector of Schools who by its letter dated 24.2.2014 requested the learned Legal Remembrancer, Government of West Bengal for obtaining certified copy of the Court's order dated 3.12.2013, particularly when it should have been applied for on the delivery of the judgment itself. 29. It is apparent that two reminders had to be sent on 24.4.2014 and 21.5.2014 for taking a decision for filing appeal against the judgement and order dated 3.12.2013, even documents relating to filing of the case had also been sent to the Legal Remembrancer on 17.7.2014 by the School Education Department. 29. It is apparent that two reminders had to be sent on 24.4.2014 and 21.5.2014 for taking a decision for filing appeal against the judgement and order dated 3.12.2013, even documents relating to filing of the case had also been sent to the Legal Remembrancer on 17.7.2014 by the School Education Department. Admittedly, the Government advocate drafted the memorandum of appeal on 4.7.2014 and stay application on 5.7.2014 which were handed over to the District Inspector of Schools on 7.7.2014 and sent by him and was approved on 14.7.2014 by the District Inspector of Schools and returned back on 16.7.2014 to the Government advocate for filing the same. It was finally typed and filed on 14.8.2014. 30. We fail to understand that when the delay condonation application and stay application were finally typed on 4.7.2014 and 5.7.2014 respectively and approval was granted on 14.7.2014, which was received by the learned Advocate on 16.7.2014, then why he filed the same after about one month on 14.8.2014? 31. In the supplementary affidavit certain dates have been given but the cause for delay is not at all explained. This Court has already held by order dated 20.08.2014 that delay condonation application does not show any sufficient cause of action. We, on the basis of the averments made in the supplementary affidavit of the State giving better reason for delay, also find that even therein sufficient cause has not been shown and delay has not been explained at all much to say explanation showing sufficient case. 32. Moreover, from the supplementary affidavit it is apparent that on 24.2.2014 the District Inspector of Schools concerned requested the Legal Remembrancer, Government of West Bengal to obtain certified copy of the court's order dated 3.12.2013 yet this appeal has been filed without certified copy of the order after taking leave from the Court. However, even thereafter the certified copy is not filed in the appeal even after leave was granted for this purpose. 33. We are also aware that an appeal can be preferred without certified copy of the judgment and even on the basis of the plain copy or server copy from the Website. However, even thereafter the certified copy is not filed in the appeal even after leave was granted for this purpose. 33. We are also aware that an appeal can be preferred without certified copy of the judgment and even on the basis of the plain copy or server copy from the Website. On grant of leave by the Court as in this case the concerned District Inspector of Schools vide his letter on 17.4.2014 to the Commissioner of School Education, Government of West Bengal had proposed for filing appeal against the judgment and order dated 3.12.2013, then why the appeal was preferred much after expiry of limitation for which there is no sufficient cause shown on record. 34. This, apart from other reason of sufficient cause not having been shown, in our considered view, is fatal in filing the appeal. For the reasons aforesaid, the delay condonation application is dismissed. As a consequence thereof, the application for stay and the appeal are also dismissed. Mir Dara Sheko, J. - I agree.