1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3957/2000 Mohammed Ayub Khan s/o Mohammed Rauf Khan, Aged 30 years, Occ-Nil R/o Mahatpuri Tq. Gangakhed Dist.Parbhani. .. PETITIONER VERSUS The State of Maharashtra (Through Its Principal Secretary General Administration Department, Mantralaya, Mumbai-32) (Copy to be served on the Govt. Pleader,High Court,Bench Aurangabad.) ..RESPONDENT Shri R.J.Godbole,Adv.for petitioner Shri K.G.Patil,AGP for respondent. ... CORAM : P.V.HARDAS & R.K.DESHPANDE,JJ. JUDGEMENT RESERVED ON :18/06/2009 JUDGMENT PRONOUNCED ON : 1/07/2009 2 ORAL JUDGMENT [PER DESHPANDE,J.] : Rule. Rule returnable forthwith. With the consent of learned counsel for the parties, this petition is heard finally at the stage of admission. 2. By this petition, the petitioner challenges the order dated 18/7/2000 passed by the Maharashtra Administrative Tribunal,Mumbai, dismissing his Original Application No.734/99 on the ground that it is barred by limitation. The facts as are necessary to decide the controversy regarding plea of limitation, are as under : 3. The petitioner, upon his selection by the Maharashtra Public Service Commission, was appointed as an Assistant in the General Administration Department of the State Government by order dated 21/12/1992, upon certain terms and conditions. The services of the petitioner were thereafter continued by separate order dated 12/2/1993. Due to some family problems, the petitioner tendered his resignation dated 29/6/95 to the Secretary (Establishment) G.A.D. Mantralaya, Mumbai expressing his desire to get relieved from service w.e.f. 1/7/1995 by paying one months salary in lieu of notice. The petitioner was informed by the department vide communication dated 8/8/1995 to remit amount of Rs.1760/- towards one months salary, upon receipt of it, the steps shall be taken to accept his resignation. It 3 however, seems that the petitioner did not remit the said amount. As a result, the resignation tendered by the petitioner was not accepted. The petitioner thereafter, submitted his application dated 11/9/95 for withdrawal of his resignation to the Secretary (Establishment), G.A.D. 4. According to the petitioner, he had started for Mumbai to join duties after submitting the application for withdrawal of resignation. However, on his way, he met with a fatal accident at Parbhani and was therefore, immediately taken by the police to the civil hospital, Parbhani. The petitioner was admitted in the hospital on 8/10/95. However, subsequently he was sent to Kamalnayan Bajaj Hospital, Aurangabad for better treatment as he had suffered several fractures and had sustained head injury and great mental shock. According to the petitioner, he was in coma for some time. The petitioner has produced on record several certificates which are at Exhs.J,K,L,M,N, and O, showing that he was not only treated in the hospital at Parbhani and Aurangabad but also at Mumbai. The petitioner claims to have suffered permanent disability to the extent of 50% and therefore, he was unfit to join the duties during period commencing from 8/8/95 to 10/7/98 and he was under treatment of the doctors. According to the petitioner, he went to join the duties on 6/11/98. However, the respondents did not permit the petitioner to join the duties and hence he filed Original Application No.734/99 on 23/9/1999 seeking direction 4 to the respondents to permit the petitioner to join the duties. 5. The respondents filed their reply on affidavit in the aforesaid Original Application on 20/1/2000, in which a specific stand was taken that the services of the petitioner were terminated by issuing one months notice dated 5/1/96 which was to take effect from 5/2/96. It was stated that the said notice was sent on the residential address of the petitioner at Parbhani and was also sent on the address of the hospital. However, both the notices received back unserved. It was further stated that on 9/4/96, the said notice of termination was published in the local news paper Godatir Samachar under the heading “Jahir Suchana”. It was therefore, submitted by the respondent that petitioner was well aware of the notice of termination and has failed to challenge the same within a period of 3 years as required by the amended provisions of Section 28-BB of the Administrative Tribunals Act, 1985. It was submitted by respondents that the Original Application filed by the petitioner was hopelessly time barred and there was no sufficient cause shown by the petitioner in not filing the Original Application within the prescribed period of limitation, the same is therefore, required to be dismissed as barred by limitation. On merits, it was the stand that the appointment of petitioner was on temporary basis and did not confer upon him any right. 6. In response to the aforesaid stand of the respondent, the 5 petitioner amended the Original Application raising the grounds of challenges to the notice of termination dated 5/1/1996 terminating his services w.e.f. 5/2/96. The petitioner claimed the relief of reinstatement and back wages in service apart from the other reliefs in respect of sanction of medical leave etc. 7. The Maharashtra Administrative Tribunal by its judgment and order dated 18/7/2000 dismissed the aforesaid Original Application on the ground that the same is barred by time. The Tribunal has noted that the public notice was given in Parbhani edition of Godatir Samachar on 9/4/96, It was also published in Nanded. The Tribunal therefore, dismissed the petition as barred by limitation and the same is therefore the subject matter of challenge in this petition. 8. The learned counsel for the petitioner contended that he had placed on record ample material to show that he had met with an accident and suffered severe injuries including the head injury which ultimately resulted in 50% permanent disability. The petitioner further contends that the documents produced on record, which are the certificates issued by concerned hospitals, amply proved that the petitioner was under the treatment from 8/10/95 to 10/7/98 and was not fit to join the duties. The petitioner further contends that after issuance of the fitness certificate, he went to join the duties on 6/11/98, however, the respondent did not permit him to join the duties. Hence he 6 preferred Original Application on 23/9/1999 which was well within limitation of one year. The counsel for the petitioner contended that he was not aware of the notice of termination dated 5/1/96 till 20/1/2000 when the respondent for the first time in their affidavit in reply took a stand that the services of the petitioner were terminated w.e.f. 5/2/96. Hence he challenged the same by moving an application for amendment, which has been allowed. According to the petitioner, this notice was never served upon him and since he was in hospital at Aurangabad, he could not notice the public notice said to have been given in the news paper Godatir Samachar on 9/4/96 and hence there was no occasion to challenge the same before 20/1/2000. According to petitioner, there was no delay in filing Original Application and if there was any delay, the same needs to be condoned, as he had shown sufficient cause. 9. As against above, the respondents submitted that the notice of termination dated 5/1/96 was sent on the residential address of the petitioner at Parbhani by registered post acknowledgment due. It was also sent on the hospital address at Parbhani on 18/3/96. Both the notices however, came back as unserved. According to the respondents, they had published notice dated 5/1/96 in the news paper Godatir Samachar on 9.4.96 under the heading “Jahir Suchana”. It should therefore, be deemed that the petitioner was aware of his 7 termination from service. According to the respondents, the petitioner has failed to file the application within a period of 3 years and has also failed to furnish sufficient cause for condonation of delay in filing Original Application. According to respondents the Original Application needs to be dismissed as time barred. 10. After going through the record and giving our anxious consideration to the rival contentions raised by the parties, we are of the opinion that the order dated 18/7/2000 passed by the Maharashtra Administrative Tribunal, Mumbai dismissing the Original Application No.734/99 on the ground of delay, needs to be quashed and set aside. Apart from the fact that the Tribunal has failed to apply its mind to the rival submissions made before it, the Tribunal has by cryptic order, dismissed the Original Application as time barred. The Tribunal has not even recorded the categorical finding that the petitioner has failed to demonstrate sufficient cause for condonation of delay caused in filing the Original Application. The order clearly suffers from non application of mind to the well established principles of law, the contentions raised by the parties and the material brought on record by the petitioner. The order of Tribunal therefore suffers from an error of jurisdiction resulting in miscarriage of justice. 11. The case of the petitioner is that he went to join duties on 6/11/1998 but was not permitted to join and hence he filed the said 8 Original Application on 23/9/1999 i.e. within a period of one year. These facts are not disputed. The stand of respondent is that there was no question in permitting petitioner to join duties on 6/11/1998 as he was already terminated w.e.f. 5.2.1996. The question is whether petitioner had knowledge of termination w.e.f. 5.2.96 through news paper notice dated 9.4.98, as the period of limitation would start from the date of knowledgde of order impugned. The Tribunal has taken the date of 9.4.96 as the date of knowledge of order to the petitioner. Even assuming that the petitioner had knowledge of the impugned order on 9.4.96, the question is whether the petitioner has made out sufficient cause for condonation of delay as contemplated by Section 21(3) of Administrative Tribunals Act, 1985 from 9.4.97 to 23.9.99, when Original Application was filed. 12. The petitioner has relied upon two judgments of the Apex Court : (1) [1998] 7 SCC page 123 N.Balakrishnan V/s M.Krishnamurthy and (2) AIR 2002 S.C. 1201 Ram Nath Sao @ Ram Nath Sahu V/s Gobardhan Sao in support of his contention for condonation of delay caused in filing the Original Application. The Apex Court in its decision in N.Balkrishnan’s case, cited supra, has laid down that the length of delay is no matter and the acceptability of explanation is the only criterion. It is further observed that in every case of delay, there can be some lapse on the part of the litigant 9 concerned, however, that alone is not enough to turn down his plea and to shut the door against him. It has further been held that if the explanation does not smack of malafides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. In the another decision reported in AIR 2002 S.C. 1201 (cited supra), the Apex Court has held that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. It has further been observed that while considering the matter, the Court should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. 13. Keeping in view the aforesaid law laid down by the Apex Court, we are of the opinion that the petitioner by producing on record certificates at Exhs. “J” to “O” has sufficiently established that he was undergoing the treatment from 7/10/95 to 10/7/98 at several places and was therefore, unable to join the duties. This material brought on record has not been disputed by the respondents. Since the petitioner was not at Parbhani at the relevant time and was admitted in the 10 hospital at Aurangabad, it can be legitimately presumed that the petitioner could not notice the public notice given in the news paper on 9/4/96 displaying the notice of termination of the services of the petitioner. As soon as the petitioner was declared fit to join the duties, he approached the concerned authorities on 6/11/98. The petitioner immediately thereafter, preferred the Original Application on 23/9/1999 within a period of limitation from the date of refusal to permit him to join the duties. The petitioner for the first time, came to know about the termination of his services on 20/1/2000 and hence by way of amendment he challenged the order of termination The petitioner therefore could not prefer Original Application prior to 23/3/1999. We are of the opinion that there was no negligence or inaction or want of bonafides on the part of the petitioner, in approaching the Tribunal challenging the notice of termination. The Tribunal ought to have condoned the delay, if there was any, in preferring Original Application. The Tribunal also ought to have seen that if the delay caused in filing Original Application is condoned, the same would also not result in defeating the rights of any of the parties. The petitioner has shown the sufficient cause and hence we condone the delay caused in filing Original Application. 14. In the result, the instant Writ Petition is allowed. The order dated 18/7/2000 passed by Maharashtra Administrative Tribunal, Mumbai 11 dismissing Original Application No.734/99 is hereby quashed and set aside. The delay caused in filing Original Application No.734/99 is condoned. The matter is remitted back to the Maharashtra Administrative Tribunal, for deciding the same on its own merits. We make it clear that we have not entered into the merits of the matter and all the contentions on merits are kept open to be decided by the Maharashtra Administrative Tribunal. The petition is allowed in the aforesaid terms. Rule made absolute. No order as to costs. [R.K.DESHPANDE] [P.V.HARDAS] JUDGE JUDGE umg/wp3957-00