wp4358.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4358 OF 2011 SARIKA KHANDU GAIKWAD. ... PETITIONER VERSUS JAI JAGDAMBA KRIDA MANDAL CIDCO AURANGABD THROUGH ADMINISTRATOR AND ORS. ... RESPONDENTS. ... Advocate for Petitioner : Mr.Andhale M.R. Advocate for R.No.3 : Mr. Chewale Dhananjay G ... CORAM : S.S. SHINDE, J. Dated: December 22, 2011 PER COURT: 1. Heard learned Counsel for the parties. Rule. Rule is made returnable forthwith. Heard finally with consent of the parties. 2. This petition takes exception to the order dated 1st November, 2010 passed by the School Tribunal, Aurangabad in Misc. Application No.25/2009 thereby rejecting the application for condonation of delay. wp4358.11 2 3. The learned Counsel for the petitioner invited my attention to the contents of the Misc. Application No. 25/2009 at Exh.C to the compilation of the writ petition and submitted that the petitioner herein first approached before the Grievance Committee by way of filing Appeal No.182/2004 and that proceeding was pending before the Grievance Committee and ultimately, on 28th April, 2009 the Grievance committee passed order directing the petitioner to file an appeal before the appropriate forum. Thirty days time was granted for filing appeal. Therefore, the learned Counsel for the petitioner would submit that the delay which has been caused in prosecuting the proceedings before the Grievance Committee can be considered u/s 14 of the Limitation Act. The applicant was prosecuting the appeal which was filed before the Grievance Committee. He was unaware that such appeal is not maintainable. Therefore, the Counsel for the petitioner would submit that by delaying the filing of appeal, the petitioner has not gained anything and therefore, this Court may allow wp4358.11 3 the petition. 4. On the other hand, the learned Counsel for the respondent vehemently opposed the writ petition and submitted that there is inordinate delay of more than five years in filing the appeal before the School Tribunal. It is further submitted that though the Grievance Committee had given liberty to the petitioner for filing appeal within 30 days, the petitioner did not take any steps to file appeal within that period, before the School Tribunal. According to the learned Counsel for the respondent, such delay of more than 5 years and some odd days cannot be condoned by entertaining the writ petition and invoking extraordinary jurisdiction of this Court. Therefore, he submits that the petition may be rejected. 5. I have given due consideration to the rival submissions of the parties. At the outset, it would be relevant to reproduce the guidelines / parameters laid down by the Supreme Court in the case of Collector, wp4358.11 4 Land Acquisition Anantnag Vs. Ms. Katiji and ors. Reported in AIR 1987 SC 1353, in paragraph 3, 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 doe sot 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:- (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 wp4358.11 5 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 is no presumption that delay is occasioned deliberately, or on account 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.” wp4358.11 6 6. As per first parameter laid down by the Apex Court, ordinarily a litigant does not stand to benefit by lodging an appeal late. In the present case also, the case of the petitioner is that his services were orally terminated and, therefore, he filed appeal before the Grievance Committee, which ultimately, passed order directing the petitioner to file appeal before appropriate forum. During this process, the petitioner spent certain time. The petitioner had not gained any advantage or benefit due to delayed filing of appeal. On the contrary, he has put himself to loss by delay in filing the appeal. The petitioner was prosecuting the proceedings before the Grievance Committee with bona fide impression that such proceedings are maintainable. It is true that the petitioner should have filed the appeal within one month from April, 2009 i.e. after passing order by the Grievance Committee. However, there is delay in filing the appeal. While considering the prayer for condonation of delay, sufficient cause as termed in Section 5 of the Limitation Act should receive liberal interpretation. The substantial wp4358.11 7 right of a party to file appeal should not be taken away by taking hyper technical view. It is different matter if the petitioner has got undue advantage by delay in filing the matter. However, in the present case, by delay in filing of appeal, the petitioner has put himself to loss. 7. In this view of the matter, the writ petition is allowed. Rule made absolute. The impugned order passed by the Presiding Officer, School Tribunal, Aurangabad is quashed and set aside. The application filed before the School Tribunal for condonation of delay cause din filing the appeal is allowed and the delay is condoned. The School Tribunal is directed to proceed with the appeal, in accordance with the law and on its own merits. [ S.S. SHINDE ] JUDGE. ... PLK/*