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2021 DIGILAW 547 (GUJ)

State Of Gujarat v. S. R. Damor

2021-07-07

A.J.DESAI, A.P.THAKER

body2021
ORDER : A.J.DESAI, J. 1. By way of present application under Section 5 of the Limitation Act, 1963 the applicant-State authorities have requested to condone delay of 561 days in filing Letters Patent Appeal under Clause 15 of the Letters Patent Act challenging oral judgment dated 26.9.2017 passed in Special Civil Application No.4999 of 2010, by which learned Single Judge has quashed and set aside the penalty imposed by the department, retiring the present respondent compulsorily, and further directed to treat him as if he has voluntarily retired from service with effect from 26.9.2007, (that is the date from which he was made to compulsorily retire by the department itself). 2. In response to the notice issued by this Court, the respondent has appeared through learned advocate Mr.K.B.Pujara and has filed affidavit-in-reply opposing this application. 3. Mr.J.K.Shah, learned AGP would submit that there are sufficient reasons, which were beyond control of government authorities, due to which delay has occurred and, therefore, this application be allowed. He would submit that, at initial stage, opinion from Government Pleader office could not be obtained, in view of the fact that posts of Commissioners, Special Officer on Duty, Administrative Officer and Assistant Director were vacant for two years and post of Accounting Officer also remained vacant for one year and, at clerical level the matter was pending. He would submit that the order was passed by learned Single Judge on 26.9.2017, which came to be served to the department on 10.10.2017, however, in absence of any competent officer, opinion from Government Pleader office of High Court of Gujarat was sought on 8.1.2019 and, thereafter the matter has moved and ultimately the appeal came to be filed by the department on 10.5.2019. He would, therefore, submit that the application may be allowed. 3.1 Mr.Shah would submit that the appellant has a very good case, if the case is examined on merits by the Division Bench. He has taken us through the impugned judgment passed by learned Single Judge and would submit that learned Single Judge has not properly considered the order passed by disciplinary authority and confirmed by the reviewing authority and altered the punishment. He would submit that learned Single Judge ought to have remanded matter to the disciplinary authority for fresh inquiry. He has taken us through the impugned judgment passed by learned Single Judge and would submit that learned Single Judge has not properly considered the order passed by disciplinary authority and confirmed by the reviewing authority and altered the punishment. He would submit that learned Single Judge ought to have remanded matter to the disciplinary authority for fresh inquiry. In support of his submission, learned AGP, Mr.J.K.Shah has relied upon decision of Division Bench of this Court in Civil Application No.1160 of 2019 in Letters Patent Appeal No.14431 of 2019 dated 1.7.2019. By relying upon the observations made in paragraph 2, 3 and 4, he would submit that Division Bench has held that any government department has various stages and the file moves at its own pace in different departments, and it cannot be presumed that any individual officer was interested in delaying further action. He has also relied upon decision of the Honourable Apex Court in the case of State of Haryana v. Chandra Mani and Others reported in (1996) 3 SCC 132 , which has been relied upon by Division Bench in the aforesaid decision and ultimately condoned the delay. 3.2 As far as merits are concerned, he has relied upon a decision of the Honourable Apex Court in the case of Director General of Police, Railway Protection Force and Others v. Rajendrakumar Dubey dated 25.11.2020 reported in 2020 SCC on-line SC 954, and would submit that learned Single Judge has committed an error in passing the order. He, therefore, would submit that delay be condoned and appeal may be heard on merits. 4. On the other hand, Mr.K.B.Pujara, learned advocate appearing for the respondent has vehemently argued that the whole procedure, including taking opinion from Government Pleader’s office, has been carried out subsequent to notice issued by this Court in a contempt application being Misc. Civil Application No.1349 of 2018 and received by the Department. He would submit that, as per the say of the applicants, the order passed on 26.9.2017 was received in the office of respondent no.1 i.e. the Secretary, Sports, Youth and Cultural Activities Department, Gandhinagar on 10.10.2017, and the same was forwarded to respondent no.2 i.e. Commissioner of the Said Department on 10.10.2017 itself, however, the file was moved thereafter only on 8.1.2019 i.e. after 15 months. He would submit that there is no explanation whatsoever about the period between 10.10.2017 and 8.1.2019 for keeping the file in the department and not seeking opinion from any of the departments, including Legal Department or from the office of the Government Pleader. He would submit that even a vague statement has been made in the application that certain posts were vacant, however, there is no clarification made in the application that from which period the posts were vacant. He would submit that it is also not clarified that as to whether anyone was in charge of such post as normally some other officer is given additional charge of the post, which are vacant. 4.1 He would submit that even certified copy of the order was applied on 11.3.2019 from the Government Pleader’s office and thereafter the appeal has been preferred. Period for filing Letters Patent Appeal under Clause 15 of the Letters Patent Act is of 30 days. Even certified copy was not applied within 30 days and it has been applied after 17 months and, in such cases, the Supreme Court has come heavily on government officers and has held that, in such cases, the Court should not take liberal view even if the Government has filed an application under Section 5 of the Limitation Act. In support of his submission, he would submit that judgment passed in the case of State of Haryana v. Chandramani is also considered by the Honourable Apex court by delivering landmark judgment in the case of Postmaster General and Others v. Living Media India Limited and Another reported in (2012) 3 SCC 563 . By taking us through paragraph 25, 26, 27, 28 and 29, he would submit that Honourable Apex Court has held that only in cases where there is no gross negligence or deliberate inaction or lack of bona fide, liberal view can be taken. Therefore, this application may be rejected. By taking us through paragraph 25, 26, 27, 28 and 29, he would submit that Honourable Apex Court has held that only in cases where there is no gross negligence or deliberate inaction or lack of bona fide, liberal view can be taken. Therefore, this application may be rejected. 4.2 Apart from above submission, Mr.Pujara has also tried to support the decision of the learned Single Judge delivered in Special Civil Application, which is sought to be challenged by filing Letters Patent Appeal and would submit that the Court was not satisfied with the manner and method in which the departmental inquiry was undertaken and learned Single Judge has examined the record, which was produced in the writ proceedings and when it has been observed that disciplinary authority has acted in high handed manner, it cannot be said that learned Single Judge has sat in appeal in examining the order of inquiry officer. He would also submit that in appeal there is no case on merits and, therefore, this application be dismissed. 5. We have heard learned advocates appearing for the respective parties. It is not in dispute that there is delay of 561 days in preferring the appeal. The say of the applicants, with regard to the dates, is as under:- “2. It is stated that the impugned Judgment and Order was passed on 26.9.2017, and the writ of the same was served to Applicant No.1 on 10.10.2017 and the same was sent to the office of Applicant No.2 on the same day, i.e., 10.10.2017. 3. It is stated and submitted that office of Applicant No.2 requested for a legal opinion against the impugned Judgment and Order from the concerned Government Pleader on 8.1.2019. ….. 5. It is stated and submitted that sanction was sought from the Legal Department on 16.1.2019 to prefer an Appeal against the impugned Judgment and Order.” 6. It appears from the aforesaid contentions of the applicant that applicant no.2 had received the order of learned Single Judge on 10.10.2017. We have also gone through the application filed by present respondent under the Contempt of Courts Act, 1971 being Misc. Civil Application No.1349 of 2018, which is tagged with present appeal as per our order dated 30.6.2021. It appears from the aforesaid contentions of the applicant that applicant no.2 had received the order of learned Single Judge on 10.10.2017. We have also gone through the application filed by present respondent under the Contempt of Courts Act, 1971 being Misc. Civil Application No.1349 of 2018, which is tagged with present appeal as per our order dated 30.6.2021. It appears that the respondent authority did not comply with judgment and order dated 26.9.2017 of learned Single Judge and, therefore, the respondent has filed an application under Section 12 of the Contempt of Courts Act, 1971 which was listed before Division Bench for hearing way back on 5.12.2018. Notice was issued and made returnable on 21.12.2018. It also appears from record that such notice in an application under the Contempt of Courts Act was received by the respondent-authority on 20.12.2018 and, thereafter, for the first time, they sought opinion from the Government Pleader’s office on 8.1.2019. It is pertinent to note that such contempt application is still pending on the ground that the State is in the process of filing Letters Patent Appeal or Letters Patent Appeal along with an application under Section 5 of the Limitation Act is pending for hearing before this Court. It is also pertinent to note that certified copy of the order, which is impugned in Letters Patent Appeal, was applied for by the department only on 11.3.2019. It is undisputed fact that certified copy has not been requested within a period of 30 days though the limitation for filing appeal is 30 days. The applicant has tried to say that some posts were vacant. Such contention, in paragraph 17 of the application, reads as under:- “17. It is submitted that it would relevant at this stage to state that the posts of Commissioner, Special Officer on Duty, Administrative Officer, Assistant Director was vacant for 2 years, as also the post of Accounting Officer for 1 year and other vacancies that kept arising in clerical levels, which hampered the process of pursuing the present Appeal. It is respectfully submitted that the aforesaid factual aspect is stated to narrate the peculiar facts which occasioned the delay in preferring the present appeal and the same is not stated as an excuse and therefore, the same may be condoned, also considering into the merits of the present case.” 7. It is respectfully submitted that the aforesaid factual aspect is stated to narrate the peculiar facts which occasioned the delay in preferring the present appeal and the same is not stated as an excuse and therefore, the same may be condoned, also considering into the merits of the present case.” 7. Above referred paragraph with regard to vacancy of posts is very vague and no period is stated as to between which period, such posts were vacant. There is no whisper about the fact that any other person was holding additional charge of the said post of either Secretary of the Department or Commissioner of the Department. It is not believable or acceptable that in absence of Secretary or Commissioner, the department would not work at all or nobody would look into the Court matters. 8. The decision relied on by learned AGP, Mr.Shah, in the case State of Gujarat v. Bharatbhai Saluji Baranda in Civil Application No.1160 of 2019 is concerned, it appears from the facts of said case that there was delay of 320 days in preferring the appeal. The department had immediately moved after getting the order from the Court, however, in different departments some delay has occurred and, therefore, by assigning special reasons, coordinate Bench has condoned delay. In our opinion, present case is squarely covered by the decision of the Honourable Apex Court in the case of Postmaster General and Others (supra), wherein it is held as under:- “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 LPA Nos. 418 and 1006 of 2007 as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. 26. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, 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 person(s) 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 bonafide, 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 bonafide 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 departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 9. By relying upon the decision of Postmaster General and Others (supra), Honourable the Supreme Court of India in case of Union of India v. Central Tibetian Schools Admin and Others in Special Leave Petition (Civil) Diary No(s). 19846 of 2020 vide its decision dated 4.2.2021 has reiterated the same principle and did not condone the delay in preferring appeal. 10. Hence, we are of the opinion that the applicant has miserably failed to establish the case to condone huge delay of 561 days in preferring Letters Patent Appeal. In view of above fact, we have not dealt with the submissions made on behalf of the parties about the merits of the case. Accordingly, this application is dismissed. 11. In view of above order, Letters Patent Appeal as well as Civil Application for stay preferred therein would not survive and the same are also disposed of.