1 9 wp 3170.11.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3170 OF 2011 Vinayak Dattatray Ghorpade .. Petitioner Vs. Shri Samarth Education Society & Ors.. .. Respondents Mr. Sanjeev Sawant i/b Mr. Sagar V. Kasar for the petitioner. Mr. Vishwanath Talkute for respondent no.1. Mr. S.D. Rairikar, AGP for respondent nos.3 to 5. CORAM: K.K. TATED, J. DATE: 15th JULY, 2011 PC: 1. Heard the learned counsel for the parties. 2. Rule. 3. By consent rule made returnable forthwith. 4. By this petition under Articles 226 and 227 of the Constitution of India, the Petitioner - original Appellant challenges the order dated 14th March, 2011 passed by the learned Presiding Officer, 2 9 wp 3170.11.doc School Tribunal, Kolhapur on Petitioner’s Application for condonation of delay (Exhibit 1) rejecting the same. 5. The Petitioner was appointed on 1st March, 1998 on the post of Clerk in the Respondent no. 2 – Raosaheb Bhausaheb Wangde Madhyamik Vidyalaya at Nitral, taluka and district Satara which is run by Respondent no.1. Thereafter, on 7th October, 2008, the Respondent orally terminated the Petitioner’s services. Therefore, the Petitioner filed an Appeal before the School Tribunal at Kolhapur on 23rd January, 2009, under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. As there was delay of 77 days he preferred an Application for condonation of delay, being Exhibit 1. In the said Application the Petitioner stated that he was suffering from back-ache and other physical illness for which he was taking medical treatment from Dr. C.L. Pardeshi, to that effect he placed on the record a medical certificate issued by Dr. C.L. Pardeshi. 6. Respondent nos. 1 and 2 filed their reply dated 2nd April, 2009 opposing the Petitioner’s application for condonation of delay. 3 9 wp 3170.11.doc In the said reply Respondent nos. 1 and 2 stated that the Petitioner abandoned his services since 2005. It is also stated in their reply in paragraph 7 that they passed resolution on 20th October, 2007 relieving the Petitioner from service. They submitted that there was delay of more than 77 days for filing the appeal before the School Tribunal and the Petitioner failed to make out sufficient cause for condonation of delay of more than 77 days. 7. The learned counsel appearing on behalf of Petitioner states that the learned Presiding Officer, School Tribunal, Kolhapur failed to consider the medical certificate issued by Dr. Pardeshi at the time of considering the Petitioner’s application for condonation of delay. He further submits that though the Petitioner filed Appeal on 23rd January, 2009, the learned Presiding Officer has taken the date 26th February, 2009 and on that basis calculated the delay in preferring the Appeal. 8. I have gone through the impugned order dated 14th March, 2011, the Application for condonation of delay preferred by 4 9 wp 3170.11.doc Petitioner and reply filed by Respondent nos. 1 and 2 dated 2nd April, 2009. It is admitted fact that the Petitioner placed on record a medical certificate issued by Dr. Pardeshi which shows that the Petitioner was taking treatment with him from 18th October, 2008 till 16th January, 2009. In any case, the Respondents themselves stated in their affidavit in reply that on 20th October, 2007 they passed resolution to relieve the Petitioner from service. Therefore, even if there is delay of more than one year in preferring the Appeal, I find that the Petitioner made out sufficient cause for condonation of delay. The Apex Court in the matter of N. Balakrishna vs. M. Krishnamurty reported in (1998) 7 SCC 123 held that the word “sufficient cause” should be construed liberally. Object of fixing time limit is not made to destroy rights. It is founded on public policy fixing life span for the legal remedy for the general welfare. Paragraphs 8, 9, 10, 11 and 12 read thus: “8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the 5 9 wp 3170.11.doc progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. 6 9 wp 3170.11.doc 10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rule of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span 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 7 9 wp 3170.11.doc limitation are not meant to destroy the right 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. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].” 9. In similar way the Apex Court in the matter of Bhagmal vs. M.P. Co-operative Marketing & Consumer Federation Ltd. & Others. reported in (2003) 11 SCC 727 the Supreme Court condoned the delay of six years, after setting aside the order of the High Court. The head note A of the reported judgment reads thus: “Limitation Act, 1963 – S. 5 – Delay of 6 years in filing statutory appeal – Condonation of, by Appellate Authority concerned – Interference with by High Court 8 9 wp 3170.11.doc – Property – Where the Appellate Authority acting within its jurisdiction condoned the delay after being satisfied with the facts stated in relation thereto, the High Court in exercise of its powers under Articles 226 and 227 of the Constitution erred in interfering with the said order of Appellate Authority, particularly when it enabled the party to pursue his statutory remedy.” 10. Even the Apex Court in the matter of Shangrila Food Products Ltd. and another vs. Life Insurance Corporation of India and another reported in (1996) 5 SCC 54 held that the High Court in exercise of jurisdiction under Article 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and sufficient justice. 11.Considering the submissions made by the learned counsel appearing on behalf of Petitioner and the reasons given in the Application for condonation of delay, I am satisfied that the Petitioner has made out sufficient cause for condonation of delay, a) Petition is allowed. 9 9 wp 3170.11.doc b) The impugned order passed by the School Tribunal, Kolhapur dated 14th March, 2011 rejecting the Petitioner’s Application for condonation of delay is set aside. c) The Petitioner’s Application dated 23rd January, 2009 (Exhibit 1) for condonation of delay is allowed. d) The School Tribunal, Kolhapur is directed to register the Petitioner’s Appeal and to decide it according to law. e) No order as to costs. (K.K.TATED,J.)