IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO(WCA) No.145 of 2006. Date of decision : 19.11.2009. Kamla Devi …Appellant Versus Manoj Kumar …Respondent Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the Appellant: Mr.G.R. Palsra, Advocate. For the respondent: Mr.Onkar Jairath, Advocate. Dev Darshan Sud, J. This petition is directed against the order of the Commissioner Workmen’s Compensation dismissing the claim of the petitioner herein as being time barred. While dismissing the petition, the Commissioner holds that the petition is barred by time and there is no explanation on the record as to why delay from 3.5.2003 to 11.12.2003 i.e. a period of about 7 months has occurred in instituting the petition for compensation. The Commissioner proceeded to dismiss the application under Section 5 of the Limitation Act, 1963, (hereinafter referred to as the `Act’), holding 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. 2 that it was not presented along with the main claim petition for consideration. The reason for dismissal has been given by the Commissioner in the following words:- “In the present case the original claim application was filed after a delay of seven months eight days. Keeping in view the social welfare nature of this legislation this Court may try to adopt a lenient attitude but what prevented the petitioner from filing an application for condonation of delay along with the main application for compensation. Thus, the application for condonation of delay was filed after a period of three years and five months from the date of death of Rup Lal”. The principles to be followed, while dealing with an application under Section 5 of the Act, are by now well settled in Shakuntala Devi Jain vs. Kuntal Kumari and others, AIR 1969 SC 575. The Court held: “7. The next question is whether the delay in filing the certified copy or, to put it differently, the delay in re-filing the appeal with the certified copy should be condoned under Section 5 of the Limitation Act. If the appellant 3 makes out sufficient cause for the delay the Court may in its discretion condone the delay. As laid down in Krishna v. Chathappan, (1890) ILR 13 Mad 269, 271. "Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant." This principle has been later-on applied and liberalized by the Court in a number of cases, one such case illustrative of the approach to be adopted is Collector, Land Acquisition, Anantnag and another vs. Mst.Katiji and others, AIR 1987 SC 1353. The Court reiterated:- “3. … … … … … … … … … … … … … 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 being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided 4 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.” The Court again reaffirmed the principle in G.Ramegowda, Major etc. vs. The Special Land Acquisition Officer, Bangalore, AIR 1988, SC 897, holding:- “7. … … … … … … However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance 5 substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. In Katiji's case (supra), this Court said : "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. " "It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." To similar effect is the judgment in M.K. Prasad vs. P.Arumugam, (2001)6 SCC 176, holding that:- “8. In construing Section 5 of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The Court has a discretion to condone or 6 refuse to condone the delay as is evident from the words "may be admitted" used in the section… … .” The Court reaffirmed the principle so laid down in State of W.B. vs. Administrator, Howrah Municipality, (1972)1 SCC 366, G.Ramegowda, Major vs. Special Land Acquisition Officer, (1988)2 SCC 142 and N.Balakrishnan vs. M.Krishnamurthy, (1998)7 SCC 123. The reasons given by the Commissioner in dismissing the application under Section 5 of the Act are not in accord with the law. The Commissioner should have kept in mind that the claimant was a villager, illiterate person and was hardly conversant with the niceties and nuances of the law, but was totally dependant on the advice of her lawyer who should have known that the application for condonation of delay should be presented along with the petition. Non-presentation of the application under Section 5 of the Act, along with the main petition is no ground for denying discretion under Section 5 of the Act. Adverting to the provisions of Section 10(1) of the Workmen’s Compensation Act, 1923, which provides the period within which the claim is preferred. The proviso to Section 10(1)(b) reads:- 7 “10(1)(b). Provided further that the Commissioner may (entertain) and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been (preferred), in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or (prefer) the claim, as the case may be, was due to sufficient cause.” The discretion so vested has to be based on judicial principles well settled in a catena of decisions. Such an exercise has not been undertaken. The order passed by the Commissioner cannot be sustained, which is accordingly quashed and set aside. This appeal is accepted and the case is remanded to the Commissioner under the Workmen’s Compensation Act, Chachyot at Gohar, District Mandi, who shall re-determine the question of limitation in accordance with law totally uninfluenced by the observations which have been made by his predecessor. Parties to appear before the Commissioner under the Workmen’s Compensation Act, Chachyot at Gohar, District Mandi, on 10th December, 2009, who shall proceed with the case with expedition. There shall be no order as to costs. 8 A direction is issued to the Registry to ensure that the record reaches the Commissioner Workmen’s Compensation Act, Chachyot at Gohar, District Mandi, on or before the next date so fixed. November 19, 2009 (Dev Darshan Sud) (aks) Judge.