WP3989.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3989 OF 2011 DHANRAJ DIGAMBAR CHAUDHARI. ...PETITIONER. VERSUS JAI TULJA BHAWANI SHIKSHAN PRASARAK MANDAL AND ORS. ...RESPONDENTS. ... Advocate for Petitioners : Mr.S.P. Salgare, h/f Mr. Talekar S.B. AGP for Respondents 3 & 4: Mr.N.R. Shaikh. Advocate for Respondents : Mr.G.R. Sapkal, Adv. h/f Mr.Sapkal V.D. Adv For Respdt 1 & 2. ... CORAM : S.S. SHINDE, J. Dated: November 25, 2011 ... PER COURT: 1. Heard learned Counsel for the parties. 2. Rule, returnable forthwith. By consent of the parties, taken up for final hearing. WP3989.11 2 3. This writ petition takes exception to the order dated 8th March, 2011 passed by the Presiding Officer, School Tribunal, Aurangabad, rejecting the application for condonation of delay filed by the petitioner herein. 4. The learned Counsel for the petitioner submits that he was appointed on 10th June, 2011 as Shikshan Sevak in the respondent institution. On 27th July, 2004, his salary was withheld. Therefore, he filed Writ Petition No.5659 of 2004. In the said writ petition, on 11th March, 2005, this Court issued Rule and liberty was granted to file civil application for interim relief. On 27th January, 2006, civil application was filed. On 13th March, 2006, an undertaking was given by the respondents No.1 and 2 that they will not terminate services of the petitioner. It is the case of the petitioner that services of the petitioner came to terminated on 12th June, 2006. The petitioner filed contempt petition No.413 of 2006 on 18th July, 2006. WP3989.11 3 The said contempt petition was disposed of on 20th March, 2007. It is the contention of the learned Counsel for the petitioner that as a result of dismissal of the contempt petition, the petitioner was under depression. It is further submitted that from 10th March, 2007 till 7th February, 2008, the petitioner was suffering from spondilitis and he was advised bed rest by the doctor. He further invited my attention to the medical certificate at page Nos.27 to 30 and submitted that for the period from 10th March, 2007 till 29th January, 2009, the petitioner was suffering different ailments and therefore, he could not file the appeal before the school tribunal within limitation. He approached to the Advocate on 1st February, 2009 and on 2nd February, 2009, the appeal was filed before the school tribunal. The Counsel for the petitioner pressed into service three judgments of the Supreme Court in case WP3989.11 4 of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others [(1987) 2 SCC 107] and in particular, para 3 of the said judgment and another judgment in the case of N. Balakrishnan vs. M. Krishnamurthy [(1998) 7 SCC 123] and in particular, para 9 of the said judgment and submitted that the length of the delay is not material. However, explanation offered in the application for condonation of delay matters. He further placed reliance on the reported judgment of the Supreme Court in case of Indian Oil Corporation Ltd., and Others vs. Subrata Borah Chowlek, etc. [2011 AIR SCW 269] and in particular, paragraphs 6,7 and 12. Relying upon the aforesaid judgments and averments in the application for condonation of delay and also the grounds taken in the petition, the Counsel for the petitioner submits that the petition deserves to be allowed. 5. On the other hand, the learned Counsel for the respondents submits that even according to the WP3989.11 5 petitioner, date of the alleged oral termination was 12th June, 2006. There is no any explanation in the application for condonation of delay till 8th March, 2007. It is further submitted that the medical certificates which are placed on record are not genuine and even if the petitioner's case that he was suffering from spondilitis, is accepted, in that case no complete bed rest was necessary. The petitioner was very much prosecuting the contempt petition and therefore, it cannot be said that he was suffering from some ailment so as to take complete bed rest. It is further submitted that the certificates which are placed on record are only to match the case of the petitioner for condonation of delay, though the petitioner was not suffering from any serious ailment. The learned Counsel for the respondents placed reliance upon the reported judgment of the Supreme Court in case of Balwant Singh (Dead) vs. Jagdish Singh and Ors. (AIR 2010 SC 3043) and in particular, para 13 of the said judgment and submitted that if the petitioner was thoroughly WP3989.11 6 negligent in implementing his rights and remedies, it will be equally unfair to deprive the respondent of a valuable right that has accrued in law as a result of his acting vigilantly. Therefore, the learned Counsel for the respondents submit that this writ petition may be dismissed. 6. I have given due consideration to the rival submissions of the learned Counsel for the parties. From perusal of the medical certificates which are placed on record, it cannot be said that the petitioner was not suffering from any ailment at all. From perusal of the certificate, I find that he was advised bed rest during the period from 10th March, 2007 till 8th February, 2008. There are other certificates also which are placed on record from pages 28 to 29. The contention of the Counsel for the petitioner that as a result of dismissal of contempt petition, he was under depressions, though is not supported by any medical certificate, however, the petitioner was in desperate need of the employment and there would have been WP3989.11 7 certain impact on his mind because of dismissal of his contempt petition. It is not in dispute that undertaking was given by the respondents No.1 and 2 in the writ petition which was filed by the petitioner praying therein for release of withheld salary by the respondents No.1 and2. The important point which requires to be considered, in the facts and circumstances of this case, is as to whether the present petitioner, who did file appeal along with application for condonation of delay before the School Tribunal, has been benefited in any manner by delaying the filing of appeal challenging the oral termination? In this context, it would be appropriate to reproduce certain guidelines laid down by the Supreme Court in case of Collector, Land Acquisition, Anantnag (supra) in para 3, which read thus: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice WP3989.11 8 being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 7. Upon perusal of 1st parameter laid down by the Supreme Court, the petitioner herein is not benefited by lodging the appeal late. On the contrary, he has put himself to loss. If the petitioner has merit in the case, if his application for condonation of delay is not WP3989.11 9 allowed, his case on merits will be thrown out without adjudication of the matter on merits. In order to do substantial justice, in the facts and circumstances of this case, though all the medical certificates produced on record from pages 27 to 30 have not mentioned complete bed rest, the fact remains that the medical certificates are on record showing that the petitioner was suffering from some ailment from march, 2007 till 31st January, 2009. Therefore, if the provisions of section 5 of the Limitation Act is to receive liberal construction and if the discretion is to be used in the facts and circumstances of this case, in order to meet the ends of justice, though there is delay of more than two years in filing the appeal, the same deserves to be condoned. It is true that some inconvenience is caused to the respondents by filing delayed appeal. However, the same can be compensated by some reasonable costs. 8. The contention of the respondents that some right has been accrued in law in their favour, in the WP3989.11 10 present matter, may not be acceptable. The Supreme Court, in case of Balwant Singh (supra) was dealing with a prayer for condonation of delay and also for setting aside abatement. However, in the present case, simplicitor prayer is for condonation of delay in filing the appeal. 9. Therefore, taking overall view of the matter, in the facts and circumstances of this case, the delay in filing appeal deserves to be condoned. 10. Accordingly, the application filed by the petitioner before the School Tribunal for condonation of delay in filing the appeal stands allowed. Delay stands condoned. Application stands disposed of subject to payment of costs of Rs.2000/- by the petitioner to the respondents No.1 and 2. The said amount of costs of Rs.2000/- shall be deposited before the School Tribunal within two weeks from today. Upon deposit of such costs, if the respondents No.1 and 2 desire to withdraw such amount, they can WP3989.11 11 do so by a formal application. If the respondents No.1 and 2 do not withdraw the said amount within two weeks from date of deposit, then the petitioner will be entitled to get back the said amount. The school tribunal to proceed with the appeal on merits. It is needless to clarify that all the contentions on merits are left open, to be agitated before the school tribunal. Rule is made absolute in the above terms. [ S.S. SHINDE ] JUDGE. ... PLK/*