1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 3580 OF 2009. Purushottam S/o Eknath Pathak, Age 63 years, Occu. Retired Government Servant, R/o Opp. Old Wagh Building, Balajipura, Amalner, Tq. Amalner, Dist. Jalgaon .. PETITIONER. VERSUS 1) The State of Maharashtra, through its Secretary, Revenue & Forest Department, Mantralaya, Mumbai. 2) The Divisional Commissioner, Nasik Division, Nasik. 3) The Collector, Jalgaon. . RESPONDENTS. ... Shri S.R. Barlinge, Advocate for Petitioner. Smt. A.V. Gondhalekar, Assistant Government Pleader, for respondent Nos. 1 to 3. CORAM : A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE : 3rd MARCH, 2010. ORAL JUDGMENT: (Per Shinde,J.) 1. Heard Learned Counsel appearing for the respective parties. 2 2. Rule. Rule is made returnable forthwith. Counsel appearing for respective respondents waive notice. With the consent of the parties, heard finally at the stage of admission. This Writ Petition takes exception to the judgment and order dated 05-02-2009 passed by the Maharashtra Administrative Tribunal, Bench at Aurangabad in Original Application NO. 274 of 2008, in Original Application 213/2008. Briefly stated the facts in the petition are as under :- 2. It is the case of the petitioner that the petitioner was originally appointed as Junior Clerk at Tahsil Office at Pachora in Jalgaon District in 1964. On 11-01-1976, the petitioner was working as Godown keeper at Erandol. While discharging duties as Godown Keeper, an audit took place and the auditor raised certain objections regarding shortage of food grains with reference to the accounts maintained. On the basis of this ground, the respondent No.3- 3 Collector assumed that the petitioner had committed misappropriation of food grains and placed him under suspension vide order dated 06-09-1979, as the disciplinary inquiry was contemplated. Simultaneously the Criminal proceedings were also initiated against the petitioner by registering offence i.e. Crime Nos. 46 to 49 of 1981. On 02-02-1991. The Collector dismissed the petitioner from service. The said order was challenged by the petitioner before the Maharashtra Administrative Tribunal, Bench at Aurangabad by filing O.A. No.213 of 1991. The said application remained pending for 11 years and ultimately, vide order dated 09-07-2002 same was allowed by the Maharashtra Administrative Tribunal, Bench at Aurangabad by setting aside the termination order dated 02-07-1991. However, it was directed to the respondent No. 3 to supply copy of the report of inquiry to the petitioner and after giving him an opportunity to show cause as to why the report of the Enquiry Officer should not be accepted. The Collector was 4 directed to pass an order in accordance with Rule 9(2) and the other relevant Rules. The petitioner attended the age of superannuation on 31-05-2000. On 19-04-2003 the Collector again vide order dated 19-04-2003 confirmed his order dated 02-02-1991. It is the case of the petitioner that, the order dated 19-04-2003 ought to have been challenged by the petitioner within one year from the date of receipt of order passed by the Collector, Jalgaon. However, the petitioner, in the mean time reached a state of frustration and suffered from major depression for which he had to be hospitalized and was under treatment. As a result of his depression, he was not in a position to understand the things, and therefore, could not approach the Maharashtra Administrative Tribunal, Bench at Aurangabad within time. Apart from this he was in precarious financial condition and from 1991, he was without any source of income and it was difficult for him to to maintain his family. In the meantime, he also had to suffer conviction in a criminal case which 5 ultimately resulted in the acquittal in appeals. According to the petitioner, all these factors contributed to the delay in filing the Original Application and although the delay was substantial, it was not deliberate one. The petitioner was not in a position to file proceedings before the appropriate forum, and therefore, the delay occurred. The petitioner filed Misc. Application NO. 274 of 2008 before the Maharashtra Administrative Tribunal, Bench at Aurangabad in OA No. 213 of 1991 for condonation of delay. The Maharashtra Administrative Tribunal, Bench at Aurangabad dismissed the said application for condonation of delay and thereby rejected the O.A. No. 213 of 1991. 3. The learned counsel appearing for the petitioner submitted that the Maharashtra Administrative Tribunal, Bench at Aurangabad has not considered a spirit of the judgment of the Hon’ble Supreme Court in case of the Collector, Land Acquisition Anantnag and another V/s. Mst. 6 Katiji and others, reported in AIR 1987 S.C.1353. According to the counsel for the petitioner, the Tribunal should have considered the fact that, by challenging the impugned termination order, the petitioner would merely succeed in getting retrial benefits. He had no hope of his reinstatement as he had attained the age of superannuation during pendency of the earlier Original Application filed by him before Tribunal. In such situation, the Tribunal ought to have condoned the delay and allowed the Misc. Application thereby hearing the O.A. on merits. According to the counsel for the petitioner by causing delay to resort to the proceedings before the Tribunal, the petitioner was not to be benefited in any manner. On the contrary he would suffer loss. Delay in filing O.A. was not an intentional or malafide and same had occurred for the reasons stated above. The counsel for the petitioner invited our attention to the contents of the Misc. Application NO. 274 of 2008 and submitted that, the sufficient cause was shown in the said application, however, the Tribunal has not considered the contentions of the petitioner 7 and rejected the said application. The learned counsel further submitted that, the important ground taken in the Misc. Application for condonation of delay i.e. the petitioner was suffering from mental depression and to that effect he was admitted in hospital on 22-04-2004 and then continued OPD basis till 31-08-2005 has not been properly considered by the Tribunal. Therefore, relying on the ground taken in the petition as well as contents in Misc. Application No. 274 of 2008 which is tendered across the bar, the counsel would submit that, by taking lenient view in the matter this Court may allow this petition and direct the Maharashtra Administrative Tribunal, Bench at Aurangabad to hear the Original Application NO. 213 of 2008 on its own merits. 4. The learned AGP appearing for the State vehemently opposed the application and submitted that, there was inordinate delay of 5 years in filing Original Application and same has not been properly explained, and therefore, the Tribunal has rightly rejected the Misc. Application No. 8 274 of 2008 in O.A. No. 213 of 2008 for condonation of delay. It is further submitted that, no sufficient cause was shown in the application for condonation of delay, and therefore, the Tribunal has rightly held that, there is inordinate delay in filing the Misc. Application No. 274 of 2008 for condonation of delay, which cannot be entertained. 5. We have heard the learned counsel for the petitioner as well as learned AGP for the State at length and also perused the contents of the petition and its annexures thereto and more particularly contents of Misc. Application No. 274 of 2008, which is tendered by the counsel appearing for the petitioner across the bar. We are of the opinion that, in the facts and circumstances of this case, the petition deserves to be allowed for the reasons stated here-in- below. The perusal of contents of Misc. Application for condonation of delay would clearly show that, the delay occurred due to various factors such 9 as the advanced age of the applicant/ petitioner as well as his ailment, the petitioner was suffering severe depression and was undergoing treatment for the said depression. We also find that, medical certificates and prescription annexed to the said application would show that, the petitioner / applicant was suffering from the stated ailments. It is further asserted in the said application that precarious financial condition of the applicant / petitioner is one of the factor which caused delay in filing Original Application. Reading the said application would show that the petitioner has made out the grounds to condone the delay. The Maharashtra Administrative Tribunal, Bench at Aurangabad has also taken a note in para No. 4 which reads thus :- “ The grounds mentioned are that applicant’s financial condition was not sound and he was not well. In support of his say a medical certificate dated 23rd April, 2008 has been filed saying that the applicant was admitted for major depression on 22nd April, 2004 and then continued on OPD basis till 31-08-2005. Some prescriptions for medicines have been enclosed.” 10 Therefore, it is not in dispute that, the medical certificates and prescription about the ailment of the petitioner were placed before the Tribunal. While considering the application for condonation of delay, two important aspects are required to be seen. Whether the explanation offered by the applicant in support of application for condonation of delay is sufficient so as to condone the delay, and whether there is any malafide intention, much less, deliberate attempt on the part of the applicant to take undue advantage by delaying filing of the proceedings? In the instant case, the perusal of the averments in the Misc. Application for condonation of delay filed before the Tribunal would show that, the petitioner is not benefited by filing proceedings belatedly, plain reading of the averments in the application and annexures thereto shows that the petitioner was suffering from mental depression and to that effect medical certificates are produced on record. The adverse order passed against the 11 petitioner in the year 2003 and as a result of the adverse order by the Collector, Jalgaon, the petitioner was deprived from getting any benefits which he was supposed to get by attending age of superannuation in 2000. Therefore, the petitioner was not at all benefited by delay in filing O.A. NO. 213 of 2008 challenging the order of the Collector, Jalgaon confirming termination of the petitioner. In order to do substantial justice, it is necessary to see as to whether the sufficient cause has been made out in the application for condonation for delay, and not the length of delay. 6 At this juncture, it would be appropriate to refer to some of the important pronouncements of the Hon’ble Supreme Court on the point; In the case of Collector, Land Acquisition Anantnag Vs. Ms. Katiji and ors. Reported in AIR 1987 SC 1353, in paragraph 3, 12 the Apex Court observed: “3 The legislature has conferred the power to condone delay by enacting S. 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in mattes instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- 13 (1) Ordinarily a litigant does not stand to benefit by lodging an appeal late; (2) Refusing to condone delay can result in meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that 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 hours delay, every seconds 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 was no presumption that delay is occasioned deliberately, or on account culpable negligence, or on account of mala fides. A litigant does not stand to 14 benefit by resorting to delay in fact he runs a serious risk. (6) It must be grasp 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.” In the case of N. Balakrishnan Vs. M. Krishnamurthy, reported in 1998 (7) S.C.C. 123, the Apex Court in para 10 held that 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 situation is not because on the expiry of such time a bad cause would transform into a good cause. The Apex Court in para 11 of the said judgment held that Rules of limitation are not meant to destroy the rights of parties. They are made to see that parties do not resort to dilatory tactics but seek their remedy 15 promptly. The object of providing legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes for life span for such legal remedy for the redressed of legal injury so suffered. Time is precious and wasted time would never revisit. In the case of M.K. Prasad Vs. P. Arumugam reported in AIR 2001 SC 2497, the Apex Court in para 9 held thus:- “9. ...... Even though the appellant appears not to be a vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment impugned, the extent of the 16 property involved and the stake of the parties. ....” This Court in the case of Ashok Balaji Ratan Vs. Nagpur Improvement Trust, Nagpur reported in 2004 (6) Bom. C.R. 861, held that in the matter of condonation of delay, the court has to see as to what shall get condoned if the delay is not condoned. If the grievance of the applicant is not opened for scrutiny, observance of mandatory provision of law shall stand neglected and balance of justice cannot be struck if the delay is not condoned. The Apex Court in the case of Perumon Bhagvathy Devaswom Vs. Bhargavi Amma (dead) by L.Rs. and ors. Reported in 2009 (2) Mh.L.J. 1 held that the words “Sufficient cause” in section 5 of the Limitation Act should receive liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of 17 bonafides, deliberate inaction or negligence on the part of the appellant. The decisive factor in condonation of delay is not the length of delay, but sufficiency of satisfactory explanation. The extent or degree of leniency to be shown by a Court depends on the nature of application and facts and circumstances of the case. Want of “diligence” or “inaction” can be attributed to an appellant only when something required to be done by him, is not done. 7. Taking over all view of the matter and having regard to the averments in the Misc. Application for condonation of delay, the medical certificates and prescription annexed to the said application as well as petition and having regard to the important aspect that by filing O.A. No. 213 of 2008 after about 5 years, the petitioner has not been benefited and on the contrary he was deprived from getting benefits to which he was entitled to if the proceedings were to be brought immediately before the Maharashtra 18 Administrative Tribunal, Bench at Aurangabad and same are to be answered in favour of the petitioner. Therefore, in the light of discussion here-in-above and in order to do substantial justice, the petition deserves to be allowed. 8 In the result, the petition is allowed. The impugned judgment and order dated 05-02-2009 in Misc. Application No. 274 of 2008 in O.A. No. 213 of 2008 is quashed and set aside and instead the said Misc. Application is allowed. Further, the said O.A. No.213 of 2008 is restored to its original position before the Maharashtra Administrative Tribunal, Bench at Aurangabad. The Maharashtra Administrative Tribunal, Bench at Aurangabad to hear the petitioner, on merits of the matter and decide the said proceedings, on its own merits, in accordance with law. Rule is made absolute on the above terms. [ S.S. SHINDE, J ] [ A.M. KHANWILKAR, J ] SDM/*