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2016 DIGILAW 967 (GAU)

UNION OF INDIA v. MD. HUSSAIN AHMED

2016-11-02

AJIT SINGH, N.CHAUDHURY

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JUDGMENT : Ajit Singh, J. Heard on admission. This is an application for condonation of delay of 232 days in filing Writ Appeal against the judgment and order dated 30.1.2014 passed by the learned Single Judge of this Court whereby he has allowed non-applicant’s WP(C) No. 6408/2007. By order under challenge, the learned Single Judge has quashed the punishment of compulsory retirement of respondent with a direction to the applicants to re-instate him in service. The non-applicant was working as Constable (General Duty) in B-179 Battalion of Central Reserve Police Force (CRPF). He was subjected to disciplinary proceedings on two charges viz. (i) on 20.4.2006 he remained absent from Camp/Line at noon without prior permission of any superior officer, and (ii) On the same day, he was deputed as quarter guard at 1600 Hours, but he was found absent from duty. The Enquiry Officer, however, conducted the enquiry without the participation of any presenting or defence officer. There was no presenting officer to produce the documents and this task in fact was discharged by the Enquiry Officer. The Enquiry Officer thus discharged dual role of the prosecutor and the judge. Also some of the additional documents incorporated by the Enquiry Officer were not furnished to the respondent and thus he was denied a fair opportunity to defend the charges. Not only this, the disciplinary authority also took into account one additional charge of physical assault by respondent though it was not included in the Memorandum of Charges dated 6.5.2006. For these reasons, the learned Single Judge has quashed the punishment of compulsory retirement of the respondent which was imposed pursuant to disciplinary proceedings. As there is a delay of 232 days in filing the present appeal against the order of learned Single Judge, we shall examine whether there is “sufficient cause” for condonation of such a huge delay. The application for condonation of delay is filed by the applicants along with an affidavit of Shashi Kant Upadhyay, D.I.G.P, G.C., C.R.P.F, Guwahati. The relevant paragraphs 5 to 8 of the application read as under: “5. That the applicants/appellants being aggrieved by the above order, the applicant/appellant decided to file an appeal before the Hon’ble Court praying to set aside and quash the same. But the appellant authority upon receipt of the order dated 30/01/2014 and 31/01/2014 sought for legal opinion from the Central Government Counsel. That the applicants/appellants being aggrieved by the above order, the applicant/appellant decided to file an appeal before the Hon’ble Court praying to set aside and quash the same. But the appellant authority upon receipt of the order dated 30/01/2014 and 31/01/2014 sought for legal opinion from the Central Government Counsel. Matter was examined by the appellant authority who then to further examine and to seek legal opinion with the concerned advocate, records were called for from the DGCRPF (Record Branch), Silchar. Due to the above reasons the delay of 232 days has occurred in filing this appeal before this Hon’ble Court. 6. That the applicant/appellant submits that the circumstances for which appeal could not be filed in time constitutes sufficient cause within the meaning of Section 5 of the Limitation Act, 1963 and as such this Hon’ble Court may be pleased to condone the delay of 232 days in filing the instant appeal. 7. That the applicant/appellant states and submits that the delay in filing the appeal within the prescribed period specified by laws was caused by the circumstances beyond the control of the applicant/appellant and there was no negligence on his part for filing the same. The applicant/appellant therefore submits that it is a fit case where this Hon’ble Court may be pleased to condone the delay in filing this instant appeal. 8. That this application is made bonafide and for the ends of justice. In view of the above premises, it is therefore prayed that Your Lordships may be pleased to admit this petition and after hearing the party/parties may be further pleased to condone the delay of 232 days in filing the instant appeal in this Hon’ble Court and would pass further order/orders as Your Lordships may deem fit and proper in the facts and circumstances of the case.” The decision of Supreme Court in Office of Chief Post Master General v. Living Media India Ltd. AIR 2012 SC 1506 is directly on the point. In this case there was a delay of 427 days in filing the appeal before the Supreme Court against the judgment of the High Court. The Supreme Court after examining other dates mentioned in the affidavit of the person-in-charge of the case to justify the delay found that there was delay at every stage with no explanation for the cause of delay. The Supreme Court after examining other dates mentioned in the affidavit of the person-in-charge of the case to justify the delay found that there was delay at every stage with no explanation for the cause of delay. The Supreme Court also took serious note of the casual manner in which the Government departments are functioning showing virtually no respect to the law of limitation. And, while dismissing the appeal on the ground of delay, the Supreme Court has made the following observation: “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. 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 Government department. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” In yet another decision, the Supreme Court in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629 has held that in cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest. Admittedly, judgment and order dated 30.1.2014 under challenge was passed in the presence of the learned counsel for the applicants and its certified copy was made available on the next date itself. Admittedly, judgment and order dated 30.1.2014 under challenge was passed in the presence of the learned counsel for the applicants and its certified copy was made available on the next date itself. And yet in the application, no particulars whatsoever have been given for such a huge delay in filing the appeal. The application also does not say when the matter was examined by the appellate authority and on which date it was sent for legal opinion and thereafter, on what date legal opinion was received. The application is apparently vague. Though it is stated that the delay in filing the appeal is bonafide, the fact remains that from day one the authorities concerned have not evinced diligence in pursuing the matter by taking appropriate steps. The applicants have miserably failed to give any acceptable and cogent reason to condone the delay in filing the writ appeal required to be filed in the same High Court building. Having regard to the above referred decisions of the Supreme Court in the fact situation of the present case, we find no sufficient cause to condone the delay of 232 days. The application is, accordingly, dismissed. In the result, the appeal also fails and is dismissed on the same ground of delay.