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2020 DIGILAW 331 (JHR)

Jharkhand State Co-operative Bank Limited v. Dhiren Kumar Mandal, son of Late Guru Das Mandal

2020-02-19

RAVI RANJAN, SUJIT NARAYAN PRASAD

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JUDGMENT : 1. The instant appeal is directed against the order dated 28.01.2016 passed by learned Single Judge of this Court in W.P.(S) No.6760 of 2013 whereby and whereunder the writ petition has been allowed with a direction upon the Managing Director, Deoghar-Jamtara Central Co-operative Bank Limited, Deoghar to pay the salary of the writ-petitioner for the period from 01.01.1999 to 10.05.2004 within two months from the date of receipt/production of the copy of the order. 2. It require to refer herein that the appeal has been filed after delay of 1355 days and as such one interlocutory application being I.A. No.11450 of 2019 has been field under Section 5 of the Limitation Act to condone the delay. 3. Mr. Mrinal Kanti Roy, learned counsel for the appellant has tried to demonstrate before this Court sufficient ground available for condoning the delay of 1355 days. He further prays that the appellant has got strong case of success and as such for consideration of delay condonation application this Court may also look into the legality and propriety of the impugned order. He has made such submission on the ground of settled position that if the issue as has been raised has got merit, the appeal is to be heard on merit and as such this Court may condone the delay otherwise if the appeal would be dismissed on the ground of limitation, the issue which has been raised will remain unanswered. 4. This Court, after having heard the learned counsel for the appellant on the point of limitation is in agreement with the aforesaid submission and taking into consideration the principle that the application may not be thrown at the threshold on technicality although limitation goes to the root of the issue and also considering the fact that in the delay condonation application, a liberal and pragmatic view is to be taken, therefore, in order to pass appropriate order on the issue of limitation, deem it fit and proper to look into the legality and propriety of the impugned order which is the subject matter of the present intra-court appeal. 5. This Court, therefore, deem it fit and proper to enumerate the factual aspects which are necessary to reach to the rightful conclusion about legality and propriety of the order, which are as under: The writ-petitioner/respondent No.1 was appointed as Paid Manager at Rikhia-Fatehpur PACS on 11.11.1981. 5. This Court, therefore, deem it fit and proper to enumerate the factual aspects which are necessary to reach to the rightful conclusion about legality and propriety of the order, which are as under: The writ-petitioner/respondent No.1 was appointed as Paid Manager at Rikhia-Fatehpur PACS on 11.11.1981. He started discharging his duty as also got his salary paid by the competent authority but the salary for the period between 01.01.1999 to 10.06.2004 has been withheld. The writ-petitioner/respondent No.1 also appeared in the examination conducted by Jharkhand Public Service Commission in pursuance to the order passed by Hon’ble Supreme Court in S.L.P. No.7353 of 1996 and on being declared successful, was appointed on Class-III post in the State Government vide letter No.397 dated 11.05.2004 and accordingly, he was posted in the office of Sub-Divisional Officer, Deoghar. The writ-petitioner/respondent No.1 had approached before the Managing Director of the appellant-bank for payment of salary for the period between 01.01.1999 to 10.05.2004, inter alia on the ground that similarly situated Paid Managers, namely Ramji Barman, Ram Naresh Singh, Sudhir Kumar Ghosh, Hari Prasad Khirhar and Mangal Hembram have been paid their salary for the above mentioned period. The writ-petitioner/respondent No.1 relied upon several orders passed by learned Single Judge, i.e., W.P.(S) No.1901 of 2006, W.P.(S) No.4778 of 2006, W.P.(S) No.1956 of 2009 and W.P.(S) No.5033 of 2012 respectively, the salary having not being disbursed, the writ-petitioner/respondent No.1 approached to this Court by filing writ petition being W.P.(S) No.6760 of 2013, which was disposed of by allowing the writ petition vide order dated 28.01.2016 by putting reliance upon the orders/judgments passed in W.P.(S) No.1901 of 2006, W.P.(S) No.4778 of 2006, W.P.(S) No.1956 of 2009 and W.P.(S) No.5033 of 2012 directing the Managing Director, Deoghar-Jamtara Central Co-operative Bank Limited, Deoghar to pay the salary in favour of the writ-petitioner for the period from 01.01.1999 to 10.05.2004, the said order is the subject matter of the present intra-court appeal. 6. Mr. Mrinal Kanti Roy, learned counsel for the appellant has assailed the aforesaid order inter alia on the ground that if such order would be allowed to remain, it would open Pandora’s box in so far as the Bank would be flooded with such claim as also will be discriminatory towards the employees whose claims have been rejected on earlier occasion. 7. 7. This Court, in course of argument, has put a specific query with respect to the outcome, status of W.P.(S) No.1901 of 2006, W.P.(S) No.4778 of 2006, W.P.(S) No.1956 of 2009 and W.P.(S) No.5033 of 2012, Mr. Roy, learned counsel for the appellant with all fairness has submitted that the orders passed in the aforesaid writ petitions have not been questioned rather the same have been complied with by making payment of arrears of salary. Now the question herein arises that can the appellant be allowed to take different approach merely on the ground that if such order would remain, Pandora’s box would be opened and can on this ground the order passed by the learned Single Judge be said to be improper when the learned Single Judge has passed the order by allowing the writ petition by adopting the principle of judicial discipline by putting reliance upon the orders passed by co-ordinate Bench in W.P.(S) No.1901 of 2006, W.P.(S) No.4778 of 2006, W.P.(S) No.1956 of 2009 and W.P.(S) No.5033 of 2012. 8. This Court, is of the view that the Court of law is to pass an order in accordance with law irrespective of the fact if such order would be passed which is strictly in accordance with law even if it will open Pandora’s box, the order cannot be said to be improper. It might be a Pandora’s box for the State authority but so far as the court of law is concerned, judicial dispensation/administration depends upon the rule and the factual aspect brought before the Court and if law so permits, the order is to be passed by the Court of law. Merely because the order would adversely affect the interest of the State, the order passed by the Court of law cannot be said to be improper. Further the ground which has been agitated by way of second ground that if the order impugned would be allowed to be sustained, the same would be discriminatory towards the employees whose claims have been rejected. This Court, with respect to this ground, is of the view that the same cannot be a ground to hold the order passed by the learned Single Judge as not sustainable in the eye of law. 9. This Court, with respect to this ground, is of the view that the same cannot be a ground to hold the order passed by the learned Single Judge as not sustainable in the eye of law. 9. Admitted fact herein is that the learned Single Judge while dealing with the issue about payment of salary of the writ-petitioner/respondent No.1 from 01.01.1999 to 10.05.2004, during which the writ-petitioner/respondent No.1 had worked as Paid Manager the fact has been brought before the writ Court with respect to the orders passed by the other co-ordinate Benches of this Court and in pursuance thereto, by following the principle of judicial discipline, the writ petition has been allowed. Further, it is not the case of the appellant that the orders passed by the co-ordinate Benches have been reversed by the higher forum rather it is the admitted case that the orders passed by the other Benches in writ petitions being W.P.(S) No.1901 of 2006, W.P.(S) No.4778 of 2006, W.P.(S) No.1956 of 2009 and W.P.(S) No.5033 of 2012 have already been complied with. The further question herein is, can the respondents be allowed to discriminate the writ-petitioner merely on the ground of opening of Pandora’s box and alleged discriminatory towards the employees whose claims have been rejected. The answer of this Court would be in negative as because if the order passed by the learned Single Judge will be held to be improper and illegal by setting it aside, it will lead to discrimination towards the writ-petitioner as because the other co-employees who have come to this Court by way of several writ petitions have already been paid their salary. If the State authority would have any grievance as has been agitated in the present appeal, it was available to them to assail the orders passed by this court in other writ petitions being W.P.(S) No.1901 of 2006, W.P.(S) No.4778 of 2006, W.P.(S) No.1956 of 2009 and W.P.(S) No.5033 of 2012 but the appellant authority has chosen not to do so, therefore, this Court is of the view that if the learned Single Judge has passed the order which is impugned in this appeal purely on the basis of the fact that on similar circumstances, the orders have been passed by the other co-ordinate benches, the said order cannot be said to suffer from any infirmity. 10. 10. We have considered the reasons assigned in the interlocutory application filed for condonation of delay wherein the reason has been assigned to condone the delay of 1355 days which is only procedural delay to the effect that non-communication of the order at proper time and Managing Director of the appellant Bank was transferred and no new Managing Director joined the Bank, hence, no decision regarding filing of the appeal could be taken and subsequently, by virtue of decision taken by the State Government seven out of eight districts’ cooperative Bank were amalgamated in the Jharkhand State Cooperative Bank Limited with effect from 01.04.2017 and by virtue of the aforesaid amalgamation the appellant/Deoghar-Jamtara Central Co-operative Bank Ltd since has also been merged with the Jharkhand State Cooperative Bank Limited, therefore, in order to reconcile with the decision of the Jharkhand State Cooperative Bank Limited the delay has been caused in filing the appeal. 11. It is not in dispute that the Court is to take liberal and pragmatic view so far as the delay condonation application is concerned, this principle is for the reason that on technicality, i.e., on the point of limitation, the main issue may not be thrown at the threshold but simultaneously it is also settled position of law that the same parameter is to be considered while dealing with the delay condonation application for the individual litigant vis-a-vis the State litigant. 12. It has also been deprecated by the Hon’ble Supreme Court that the routine reason of movement of file from one table to another and delay in taking decision cannot be said to be sufficient ground to condone the delay. In this regard, reference may be made to the judgment rendered in the case of Postmaster General vs. Living Media India Limited, (2012) 3 SCC 563 wherein at paragraph 28 & 29 the Hon’ble Supreme Court has been pleased to observe which reads hereunder as: “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. 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. 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.” Reference may also be made to the judgment rendered in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Ors., (2013) 12 SCC 646 wherein at paragraph-32 it has been observed : “32. The plea of lack of knowledge in the present case really lacks bona fide. The Division Bench of the High Court has failed to keep itself alive to the concept of exercise of judicial discretion that is governed by rules of reason and justice. It should have kept itself alive to the following passage from N. Balakrishnan: (SCC pp.127-28, para 11)- “11. ……The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.” We have painfully re-stated the same.” Reference may also be made to the judgment rendered in the case of University of Delhi vs. Union of India and Ors., 2019 SCC OnLine SC 1634 wherein at paragraph-20 it has been observed : “20. From a consideration of the view taken by this Court through the decisions cited supra the position is clear that, by and large, a liberal approach is to be taken in the matter of condonation of delay. The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation. In the case of Katiji (Supra) the entire conspectus relating to condonation of delay has been kept in focus. In the case of Katiji (Supra) the entire conspectus relating to condonation of delay has been kept in focus. However, what cannot also be lost sight is that the consideration therein was in the background of dismissal of the application seeking condonation of delay in a case where there was delay of four days pitted against the consideration that was required to be made on merits regarding the upward revision of compensation amounting to 800 per cent.” 13. Admittedly herein the order has been passed on 28.01.2016 but the appeal has been filed on 18.06.2019 and as such there is inordinate delay of 1355 days that too without showing sufficient cause of such delay. 14. This Court, on the basis of the aforesaid discussion, is of the view that the reasons shown for cononation of delay are not sufficient for condoning the delay. 15. In the result, the appeal stands dismissed both on the point of limitation and on merit.