1 wp-1774-10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srk WRIT PETITION NO.1774 OF 2010 Mrs. Suneeta Laxman Kaledhonker deceased, her legal heirs & ors. .. Petitioners V/s. The State of Maharashtra & Ors. .. Respondents. Mr. A.M. Joshi for the Petitioner. Mr. P.G.Sawant, ‘B’ Panel for Respondent nos.1 and 2. Mr. Sugandh B. Deshmukh for Respondent nos. 3 and 4. CORAM : K.K.TATED, J. RESERVED ON : 22ND JUNE, 2011. DECIDED ON : 30TH JUNE, 2011. P.C. 1 Heard the learned counsel for the parties. 2 Rule. 3 By consent, rule made returnable forthwith. Taken on board finally at the stage of admission. 4 By this Petition under Article 227 of the Constitution of India, Petitioner original Applicant challenges the order dated 25th January, 2 wp-1774-10.doc 2010 passed by the learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur below Exhibit 3 in Appeal No. 125 of 2002 rejecting Petitioner’s Application for condonation of delay under section 9 (3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. 5 A few facts of the matter are as under: The Petitioner – original Applicant was appointed with Respondent no.3 and 4 on 7th September, 1995 as Assistant Teacher. Thereafter, the services of the Petitioner were terminated in the year 1998. Being aggrieved by the termination of service, Petitioner preferred Appeal before the School Tribunal being Appeal No.125 of 2002. There was delay of 4 years, 9 months and 5 days in preferring the said Appeal. Therefore, the Petitioner preferred Application dated 11th December, 2002 for condonation of delay. 6 In the said Application for condonation of delay, Petitioner pleaded that initially she made representation to the Lokayukta and Deputy Lokayukta of Maharashtra State, Mumbai about her grievance and waited for the decision. In the meanwhile as advised, she filed many representations to the Social Welfare Department also. When 3 wp-1774-10.doc she came to know that there was no hope to get justice from the Department, she filed First Appeal No.63 of 1999 before the Hon’ble School Tribunal. But after some time, she came to know that School Tribunal had no jurisdiction to entertain the Appeal of the Employees of the Ashram School. Therefore, she withdrew the said Appeal. 7 Thereafter, she filed Special Civil Suit No. 9 of 2000 before the Hon’ble Civil Judge Senior Division, Islampur. In the said Suit, the Civil Judge Senior Division, Islampur passed order on 31st October, 2002 holding that that court had no jurisdiction to try and entertain the suit of the Petitioner. The Civil Court passed order to the effect that the Petitioner may approach the School Tribunal for the remedy under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 for seeking relief of declaration against oral order of termination and her reinstatement in service and payment of compensation. The Civil Court granted liberty to the Petitioner to choose an alternate remedy of claiming recovery of unpaid salary by seeking permission for necessary amendment. 8 Thereafter, the Petitioner filed present Appeal No.125 of 2002 before the Presiding Officer, School Tribunal, Kolhapur Region, 4 wp-1774-10.doc Kolhapur on 11th December, 2002 and filed an Application for condonation of delay. 9 Initially, the Tribunal allowed Petitioner’s Application for condonation of delay by an order dated 10th October, 2008. Against the said order Respondent no.3 preferred Writ Petition No.7559 of 2008. This court (Coram: S.A.Bobde, J.) by an order dated 20th January, 2009, remanded the case to the Tribunal for a fresh decision in accordance with law. 10 Thereafter, the Tribunal decided Petitioner’s Application for condonation of delay by an order dated 23rd February, 2009 and condoned the delay. 11 Being aggrieved by the order dated 23rd February, 2009, Respondent no.3 preferred Writ Petition No. 3625 of 2009 in this court. This Court (Coram: Smt.V.K.Tahilramani, J.) by an order dated 16th September, 2009 set aside the order dated 23rd February, 2009 and remanded matter to the Tribunal to reconsider the matter afresh and decide the condonation of delay Application of Petitioner in consonance with the order of this court dated 20th January, 2009 in Writ Petition No. 7559 of 2008. 5 wp-1774-10.doc 12 After remand, the Tribunal considered the Petitioner’s Application for condonation of delay and held that the Petitioner failed to explain satisfactorily the inordinate delay in filing the Appeal and therefore, the Petitioner was not entitled for condonation of delay of 4 years, 5 months and 19 days in preferring the Appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Hence, the present petition. 13 The learned counsel appearing on behalf of Petitioner submits that the Tribunal erred in coming to the conclusion that the Petitioner failed to make out the sufficient cause for condonation of delay in filing the Appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. 14 The learned counsel appearing on behalf of Petitioner submits that actually Respondent no.3 terminated the Petitioner’s services on 30th June, 1998 whereas, Respondent no.3 is claiming that they by their letter dated 23rd March, 1998 terminated the Petitioner’s services with effect from 30th April, 1998. He submits that initially, the Petitioner made representation to the Lokayukta and Deputy 6 wp-1774-10.doc Lokayukta by her letter dated 7th July, 1998 to look into her grievance about illegal termination and her back wages. He submits that the Lokayukta decided her representation by an order dated 22nd April, 1999 against her. 15 Thereafter, Petitioner immediately preferred Appeal no. 63 of 1999 before the Tribunal. As she learnt that Appeal was not maintainable in view of the decision of this court, she withdrew the said Appeal on 16th December, 1999. 16 After withdrawal of the Appeal No.63 of 1999, Petitioner filed Special Civil Suit No. 9 of 2000 in the court of Civil Judge Senior Division at Islampur on 7th April, 2000. In the said suit, Civil Judge Senior Division, Islampur passed an order on 31st October, 2009 holding that Civil Court had no jurisdiction to try and entertain the suit of the Petitioner in that form, the Petitioner might approach the School Tribunal for the remedy under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, for seeking relief of declaration against the oral order of termination, reinstatement in service and the compensation. The operative part of the said order reads thus: 7 wp-1774-10.doc “1 Petition is hereby allowed. This Court has no jurisdiction to try and entertain the suit of plaintiff in present form. 2 The plaintiff may approach the School Tribunal for the remedy under Sec. 9 of M.E.P.S. Act for seeking relief of declaration about oral order of termination and reinstatement in service and the compensation. 3 The plaintiff is of liberty to choose an alternate remedy for claiming recovery of unpaid salary by seeking permission for necessary amendment. 4 No order as to costs.” 17 Thereafter, Petitioner immediately filed present Appeal no.125 of 2002 before the School Tribunal, Kolhapur Region, Kolhapur under section 9 (3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 on 11th December, 2002. In the said Appeal, she made an Application for condonation of delay. 18 The learned counsel appearing on behalf of the Petitioner submits that the Tribunal erred in coming to the conclusion that the Petitioner failed to explain the delay of one year and 21 days i.e. from 7th July, 1998 when the Petitioner made representation to the Lokayukta, till filing of Appeal no. 63 of 1999 on 21st May, 1999. He 8 wp-1774-10.doc further submit that the Tribunal erred in coming to the conclusion that the Petitioner had not made any grievance before Lokayukta in her representation about termination of her services. He submits that bare reading of the representation made before the Lokayukta shows that Petitioner made grievance about the termination in her representation dated 7th July, 1998. It is specifically stated in the said representation that Respondent no.3 without giving any notice terminated her service from 1st July, 1998 which is against rules and regulations. 19 He further submits that the Tribunal failed to consider that as soon as the Lokayukta passed an order dated 22nd April, 1999 rejecting Petitioner’s representation, Petitioner filed Appeal No.63 of 1999 on 21st May, 1999 i.e. within 30 days from the receipt of order of Lokayukta. He further submits that the Tribunal failed to consider that the Petitioner initially withdrew her Appeal no. 63 of 1999 on 16th December, 1999 as the same was not maintainable as per prevailing ruling of this court on that date. Thereafter, the Petitioner immediately filed Civil Suit on 7th April, 2000 and same was decided on 31st October, 2002 by the Civil Court holding that Civil Court has no jurisdiction to entertain Petitioner’s grievance as the alternate remedy is available. Immediately on receipt of the certified copy of decision in 9 wp-1774-10.doc the civil suit, Petitioner filed Appeal no. 125 of 2001 on 11th December, 2002. He submits that the Tribunal aught to have condoned the delay considering the steps taken by the Petitioner for redressal of her grievance. 20 He submit that even the Apex Court in the matter of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others reported in AIR 1987 SC 1353 held that in case of condonation of delay, court should adopt liberal approach. He specifically relied on para 3 of the said judgment. He also relied on judgment of the Apex Court in the matter of N Balkrishnan vs. M Krishnamurthy reported in (1998) 7 SCC 123. In that authority, the Apex Court held that the object of fixing the time limit is not mean to destroy the rights of litigant. Court should take liberal view in condonation of delay if the sufficient cause is shown by the party. On the basis of these two authorities and above mentioned submissions, the learned counsel appearing on behalf of Petitioner submits that the impugned order passed by the learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur dated 25th January, 2000 below Exhibit 3 in Appeal no. 125 of 2002 is liable to be set aside and Application filed by the Petitioner for condonation of delay deserve to be allowed. 10 wp-1774-10.doc 21 On the other hand, the learned counsel appearing on behalf of Respondent nos. 3 and 4 vehemently opposed the present Petition. He submits that the Petitioner failed and neglected to make out the sufficient cause for condoning the delay of 4 years, 9 months and 5 days in preferring the Appeal no.125 of 2002 under section 9 (3) of the the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. He submit that they issued a termination letter dated 23rd March, 1998 to the Petitioner stating that her services will come to an end from 30th April, 1998. The said letter was duly served on Petitioner. Instead of filing the Appeal against the termination order, Petitioner preferred representation before the Lokayukta on 7th July, 1998 which was decided by the Lokayukta on 22nd April, 1999 against her. Thereafter, Petitioner preferred Appeal no.63 of 1999 on 21st May, 1999. In preferring the said Appeal No.63 of 1999, there was delay of one year and 21 days. Not only that the Petitioner had withdrawn the said Appeal on 16th December, 1999 and thereafter, filed civil Suit on 7th April, 2000. The Petitioner filed the said civil suit after 107 days delay. The said civil suit was decided on 31st October, 2002 and 41 days thereafter, the Petitioner preferred the Appeal no. 125 of 2002 on 11th December, 2002. 11 wp-1774-10.doc 22 The learned counsel appearing on behalf of Respondent nos. 3 and 4 submits that the Petitioner in her Application for codonation of delay failed to explain the delay of 4 years, 5 months and 19 days. He submit that the Petitioner failed to explain the delay by giving dates, on which she filed representation before the Lokayukta, when the Lokayukta decided her representation, thereafter, when she preferred the Appeal no.63 of 1999, when she withdrew the said Appeal, when the Petitioner filed the Civil Suit, when that Civil Suit was decided by the court. All these dates are not stated by the Petitioner in her Application for condonation of delay dated 11th December, 2002. He submits that Petitioner filed a vague Application for condonation of delay. He submits that the Petitioner failed to show sufficient cause for condonation of inordinate delay of more than four years. He further submit that even for making the application for condonation of delay and for taking shelter of section 14 of the Limitation Act, it is the duty of the Applicant to explain the day to day delay for making out case for condonation of delay. In the present case, these facts are not disclosed by the Petitioner in her application and therefore, the learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur rightly held that Petitioner failed to explain inordinate delay in filing the Appeal satisfactorily. 12 wp-1774-10.doc 23 He submits that the Apex Court in the matter of Lanka Venkateshwarlu (Dead) By LRs vs. State of Andhra Pradesh and others reported in (2011) 4 SCC 363 held that liberal approach in considering sufficiency of cause for delay should not overwrite substantial law of limitation, especially when the court finds no justification for delay. He submits that both the authorities cited by the Petitioner hereinabove are considered by the Apex Court in that case in para 19, 20 and 23. He also relies on judgment of the Apex Court in the matter of Oriental Aroma Chemical Industries Limited. vs. Gujarat Industrial Development Corporation and another reported in (2010) 5 SCC 459. In that case, the Apex Court held that the liberal approach in condoning the delay of shorter duration can be taken but strict approach is required in cases of inordinate delay. He relies on para 14, 15 and 16 of that authority. On the basis of these submissions and those two authorities, the learned counsel appearing on behalf of Respondent no.3 and 4 submits that the learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur rightly held that Petitioner failed to point out sufficient cause for condonation of inordinate delay and therefore, there is no substance in the writ petition and the same is liable to be dismissed with costs. 13 wp-1774-10.doc 24 In similar way, the learned AGP appearing on behalf Respondent nos. 1 and 2 filed their affidavit­in­reply dated 4th October, 2010 opposing the present Writ Petition. 25 With the assistance of the both the counsel appearing for the parties, I have gone through the Petitioner’s application dated 11th December, 2002 for condonation of delay in filing Appeal before the School Tribunal, Reply filed by the Respondents and the impugned order passed by the Tribunal below Exhibit 3, dated 25th January, 2010 in Appeal No.125 of 2002 rejecting Petitioner’s Application for condonation of delay of 4 years, 5 months and 19 days in filing Appeal. Bare reading of the Petitioner’s application for condonation of delay shows that she failed to disclose any sufficient cause. In her Application for condonation of delay in para 2, the Petitioner stated that during the period of delay the petitioner was not negligent about her case. On the contrary, maximum period of delay seems due to the pendency of Appeal. Para 2 of the said application reads as under: “2) The Appellant most respectfully states and submits that she has filed her appeal today. There is a delay in filing the present appeal. Though actually the delay seems to be of 4 years, 5 months and 19 days, the delay deserves to be condoned. During the period of delay, the 14 wp-1774-10.doc Appellant was not negligent about her case. On the contrary maximum period of delay seems due to the pendency of the appeals. She had filed her representation to the Lokayukta and Dy. Lokayukta of Maharashtra State and waited for the decision. Meanwhile as per the guidance she had filed her many representations to the Social Welfare Department.” 26 If we peruse the entire application for condonation of delay, no where the Petitioner stated when she made an application before the Lokayukta, when the Lokayukta office decided her application, when she preferred Appeal, when the Appeal was withdrawn and when the suit was filed. Without disclosing the dates and the reasons for delay, the Petitioner in casual manner filed an application for condonation of delay of 4 years, 5 months and 19 days. When the Respondent­ management issued termination notice dated 23rd March, 2008, which was duly received by the Petitioner, instead of filing appropriate proceeding, petitioner filed application/ representation before the Lokayukta on 7th July, 1998 which was decided on 22nd April, 1999. The Petitioner in her application for condonation of delay failed to disclose under which provision she made application to the Lokayukta against her termination order and on whose advise she adopted the said proceeding. After the decision of the Lokayukta on 22nd April, 15 wp-1774-10.doc 1999, the Petitioner filed an Appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 on 21st May, 1999. There was a delay of 1 year 21 days in preferring the said Appeal from the date of termination. This period is not explained by the Petitioner in her application for condonation of delay. Subsequently, Petitioner filed civil suit and thereafter she withdrew the said civil suit and preferred the Appeal. This shows that the Petitioner has taken the litigation in casual manner. 27 During the pendency of the present petition, petitioner expired on 21st August, 2010 and thereafter her legal heirs were brought on record and they are pursuing the present writ petition. Initially, when the Tribunal allowed her application, Respondent­management filed writ petition. This court remanded back the matter to the Tribunal for deciding Petitioner’s application for condonation of delay, considering the cause that existed during a particular period. This court held that if more than one cause is involved then the Tribunal is duty bound to consider all causes put forth by the Petitioner with reference to those periods. Thereafter, again the Tribunal decided the Petitioner’s application in her favour. The same was challenged before this court 16 wp-1774-10.doc in Writ Petition no.3625 of 2009. This court by an order dated 16th September, 2009 remanded the matter to the Tribunal to decide the Petitioner’s application for condonation of delay considering the previous order in Writ Petition no.7559 of 2008 dated 20th January, 2009. Thereafter, the Tribunal has considered all the proceedings adopted by Petitioner before filing Appeal no.125 of 2002 under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, before the School Tribunal. After considering each and every cause, as stated by the petitioner, the learned Presiding Officer of the Tribunal held that the Petitioner failed to explain the inordinate delay of 4 years, 5 months and 19 days and particularly the delay of 1 year and 21 days from the date of termination order till filing of the First Appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, on 21st May, 1999. 28 It is to be noted that section 5 of the Limitation Act, 1963 enable the Appeal court to admit the Appeal after the prescribed period on the Appellant/Applicant satisfying the court that he/she had sufficient cause for not preferring the Appeal in time. It is the satisfaction about the sufficiency of the cause in not preferring the Appeal in time that 17 wp-1774-10.doc confers the jurisdiction to the Appeal court for condoning the delay in filing Appeal. If the Appellant does not show the sufficient cause, nor the court records the finding that the cause shown by the Appellant is sufficient in not preferring the Appeal in time, the court does not possess power to arbitrarily condone the delay in the name of advancing substantial justice. Even the Apex Court in the matter of Pundalik Jalam Patil (D) by L.Rs. vs. Exe. Eng. Jalgaon Medium Project and another reported in 2008 (6) Bom.C.R. 513 held that court should not condone inordinate delay if sufficient cause is not shown by the Applicant just in the interest of justice. The para 22 and 23 of the said judgment read as under: “22. Basically the laws of Limitation are founded on public policy. In Halsbury's Laws of England, 4th Ed., Vol. 28, p.266, para 605, the policy of the Limitation Acts is laid down as follows: “The courts have expressed at least three different reasons supporting the existence of statutes of limitation, namely, (i) that long dormant claims have more of cruelty than justice in them, (ii) that a defendant might have lost the evidence to dispute the stated claim, (iii) that persons with good causes of actions should pursue them with reasonable diligence.” 18 wp-1774-10.doc 23. Statutes of limitation are sometimes described as `statutes of peace'. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This Court in Rajender Singh and others vs. Santa Singh and others, 1973 DGLS (soft) 240: 1973 (2) S.C.C. 705, has observed : “the object of law of Limitation is to prevent disturbance and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches”. In (Motichand vs. Munshi) 1969 (2) S.C.R. 824, this Court observed that this principle is based on the maxim “interest republicae ut sit finis litum, that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.” 19 wp-1774-10.doc 29 The authorities cited by the learned counsel appearing on behalf of Petitioner in the matter of Collector, Land Acquisition, Anantnag and others (supra) and in the matter of N. Balkrishnan (supra) are not applicable to the facts of the present case. Considering the facts and circumstances of both the authorities cited by the Petitioner, the Apex Court particularly held that if the Applicant/ Appellant shows sufficient cause then only court can condone the delay. In the present case, the Petitioner failed to disclose any sufficient cause in her Application dated 11th December, 2002 for condonation of delay. Both these authorities, cited by the learned counsel appearing on behalf of the Petitioner, referred to in the subsequent decision of the Apex Court judgment in the matter of Lanka Venkateshwarlu (Dead) By LRs. (supra) cited by respondent. In that case, the Apex Court held that liberal approach in considering sufficiency of cause for delay should not overwrite substantial law of limitation especially when the court find no justification for delay. 30 In the present case, the Tribunal categorically held that the Petitioner failed to show any sufficient cause for condonation of inordinate delay. Apart from that this court in exercise of jurisdiction under section 226 and 227 of the Constitution of India cannot disturb 20 wp-1774-10.doc the finding of fact recorded by the trial court unless and until it is pointed out that same is perverse which is not the case here. 31 Considering these facts, I do not find any substance in the present writ petition