1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7689 OF 2008 Anandrao S/o Hukaruji Shamkule } Age : 55 Years, Occ. : Service, } R/o : Flat No. 10, Royal Heritage, } Samarth Nagar, Aurangabad. } .... PETITIONER V E R S U S 1. The Secretary, } People’s Education Society } 348, Anand bhavan, } Dr. Dadabhai Nauroji Road, } Mumbai – 400 023. } 2. The Joint Director, } Higher Education, } Railway Station Road, } Aurangabad. } 3. The Registrar, } Dr. Babasaheb Ambedkar } Marathwada University, } Aurangabad. } 4. Miss. Vaishali Pradhan } Age : 38 Years, Occ. Service, } R/o : Milind College of Arts, } Aurangabad. } .... RESPONDENTS 2 Mr. A.R.Mohane, Counsel for Petitioner. Mr. M.M. Ambhore, Counsel for Respondent No. 1. Mr. P.G.Deshmukh, Counsel for Respondent Nos. 2 to 4. [ CORAM : S.S.SHINDE, J. ] JUDGMENT RESERVED ON : 11/08/2009 JUDGMENT PRONOUNCED ON : 20/08/2009 JUDGMENT : 1. Rule, heard forthwith. 2. This Writ Petition takes exception to the Order dated 8/10/2008 passed by the Presiding Officer, University and College Tribunal, Aurangabad in Misc. Application No. 2 of 2008. The present petitioner herein filed Appeal before the Presiding Officer, University and College Tribunal, Aurangabad along with application for condonation of delay. The Presiding Officer, University and College Tribunal, Aurangabad has been pleased to reject the application for condonation of delay by its Order dated 8/10/2008. Hence, this Writ Petition is filed by the petitioner. 3. The learned counsel appearing for the petitioner submitted 3 that delay in filing Appeal was caused due to death of his mother and also the petitioner met with an accident, in which his both legs were fractured, due to which he can not move for 8 – 9 months. The learned counsel further argued that as a result of ill health, mental condition of the petitioner was not sound and due to threat of termination and also as per assurance by the Management, the petitioner was expected that he will be reinstated on the post of Principal. The learned counsel further argued that the petitioner was suffering from disease of bleeding piles, due to which he was under medical treatment for near about 7 months and, therefore, there was delay in filing the Appeal. The learned counsel invited my attention to the pleadings in the petition, grounds herein and relying on the grounds in the petition, learned counsel submitted that, the right of Appeal is a valuable right of the litigant and same should not be frustrated by rejecting the application for condonation of delay and consequently no adjudication on merits. The learned counsel invited my attention to the contents of the application for condonation of delay before the Tribunal and submitted that sufficient cause was disclosed in the said application for condonation of delay. In support of his contention, learned counsel placed reliance on reported Judgment of the Himachal Pradesh High Court in case of Union of India & Others V/s Lachhaman Dass Sain Ditta Mall & Others reported in AIR 2002 HIMACHAL 4 PRADESH 50. Learned counsel on the basis of said Judgment submitted that while considering the applications for condonation of delay and deciding them, the approach of the Court should be to decide the matter on merits and to do substantial justice between the parties. Merits can not be ignored or over looked altogether. 4. The learned counsel further invited my attention to the reported Judgment of the Orissa High Court in case of Food Corporation of India V/s Jugal Kishor Agrawal reported in AIR 2001 Orissa 158 and submitted that, in order to do substantial justice, the Court should be liberal in entertaining the application for condonation of delay and more particularly when the delay is not deliberate or on account of culpable negligence or on account of malafides. 5. The learned counsel further placed reliance on reported Judgment of the Apex Court in case of Shyam Sunder Sarma V/s Pannalal Jaiswal & Others reported in AIR 2005 SUPREME COURT 226. The learned counsel invited my attention to paragraph 10 of the said Judgment and submitted that the dismissal of application for condonation of delay is in substance dismissal of Appeal on refusal to condone the delay. Therefore, the learned counsel would submit that the delay caused in filing Appeal was neither intentional nor deliberate and, therefore, same should have been condoned by the Presiding 5 Officer, University and College Tribunal, Aurangabad. 6. The learned counsel appearing for the respondent submitted that no sufficient cause is disclosed in the application for condonation of delay and consequently the Presiding Officer, University and College Tribunal, Aurangabad was not left with any choice but to reject the application for condonation of delay. The learned counsel invited my attention to the averments in the application for condonation of delay, which was filed before the Tribunal and submitted that all the pleadings in the application are general in nature. No specific dates are given, no material particulars are given and only general averments are made. According to the learned counsel for respondent, application for condonation of delay should disclose sufficient cause and then only the Court can entertain such application. Therefore, the learned counsel would submit that there is inordinate delay of 690 days, which has not been properly explained. Hence, this Writ Petition is devoid of merits and same deserves to be dismissed. 7. I have heard the learned counsel appearing for petitioner as well as respondent at great length. I have perused the application for condonation of delay filed by the petitioner herein, which is annexed by the petitioner as EXH. ‘ A ’. On perusal of paragraph 1 of the said application, the averments are general in nature. In paragraph 2 of the said application, the petitioner has contended that, during the 6 course of suspension and enquiry, his mother, who happened to be the strong support behind him, passed away. As if this was not enough, the applicant had met with an accident, in which his both legs were fractured. The appellant’s mental condonation was not sound as it was obvious and the threat of termination was given by the respondent – Society if the appellant does not join the services within 15 days. In paragraph 3, it is stated that the delay in filing the Appeal is unintentional and caused in particular circumstances and, therefore, application deserves to be allowed. EXH. ‘ C ’ from page nos. 32 to 37 is the reply filed by the respondent before the School Tribunal. On perusal of the said reply, the respondents have demonstrated that no sufficient cause has been shown in the application for condonation of delay. 8. The Tribunal has extensively dealt with the application for condonation of delay. In paragraph 8, the Presiding Officer has considered the rival submissions and has observed that while considering the application to condone the delay, liberal approach needs to be taken. It is also necessary to make it clear that condonation of delay is matter of discretion of Court and same can be exercised with limit. The length of delay is no matter, acceptability of the explanation is the only criteria. The learned Judge in paragraph 9 has observed that, ‘ It is also necessary to make it clear that rules of limitation are 7 not meant to destroy the rights of the parties and they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. ’ Learned Judge has discussed ‘ sufficient cause ’ in paragraph 10 and 11. The learned Presiding Officer has dealt in with the factual aspect in the matter and in paragraph 12, the learned Judge has taken a note of the fact that the management by their letter dated 15/11/2006 has specifically directed that the representation by the petitioner has been considered by governing body and thereafter the direction was given to the applicant to join the duties as Lecturer at Milind College of Arts, Aurangabad within 15 days. The learned Judge has considered Judgments in Paragraph 13 of its Judgment and concluded that considering the factual aspects of the case, no sufficient cause has been disclosed in the application for condonation of delay. The learned Judge has observed that no any satisfactory explanation for the delay from 17/11/2006 to 19/3/2008 has been offered by the petitioner in the application and relying on Judgments of the Supreme Court in case of N. Balakrishnan Vs/ Krishnamurthy AIR 1998 SC 3222 and in case of D. Gopinathan Pillai V/s State of Kerala and another reported in 2007 (3) Mh. L.J. 54, the Judge rejected the application for condonation of delay. 9. This Court directed the petitioner to produce on record the Medical Certificate and accordingly the petitioner has produced copy of the Certificate along with Civil Application No. 8113 of 2009 to take the 8 same on record. 10. On careful perusal of the pleadings in the petition as well as application for condonation of delay which was filed before the Tribunal, it is clear that the petitioner has not explained properly the delay of 690 days in filing Appeal. Perusal of the application filed before the Tribunal for condonation of delay mentions the ground that during the suspension of the petitioner, mother of the petitioner died. The applicant had an accident, in which his both legs were fractured and the mental condition was not sound due to the threat of termination and in para no. 3 it is mentioned that the application is bonafide and delay caused in filing Appeal is unintentional and caused in peculiar circumstances. The perusal of the averments in the application would show that no period is mentioned, only general averments are made. It is not the case of the petitioner that his mother died after he has joined services as Lecturer. It is also not the case of the petitioner that he has offered sufficient explanation for condonation of delay from November, 2006 till March, 2008, except general averments in the application. On perusal of the certificate which is placed on record by the petitioner, it appears that the Doctor has certified that he is fit to join his duty from 17/11/2006. The Certificate issued by the Doctor reads thus : 9 “ This is to certify that Mr. Shamkule Anandrao Hukaruji was suffering from ‘ Bleeding Piles C Severe anaemia C hypoproteinemia C General debility ’. He was under treatment and was advised rest from 17/3/2006 to 16/11/2006. Now he is fit to joint his duty from 17/11/2006. ”. 11. On perusal of the contents of the Certificate and more particularly last sentence of the certificate, it is abundantly clear that, the petitioner was fit to join his duty from 17/11/2006. It means the petitioner was fit in all sense and, therefore, there was no any reason why he did not take steps to file Appeal immediately. As learned Judge has rightly observed in paragraph 13 of its Judgment that no any satisfactory explanation has been offered by the petitioner from 17/11/2006 to 19/3/2008. I have also independently perused the application for condonation of delay which was filed before the Tribunal and I am of the considered view that the Order passed by the Tribunal needs no interference. Though the learned counsel appearing for the petitioner has placed reliance on certain Judgments, in the facts of this case when no sufficient cause has been shown in an application for condonation of delay, those Judgments are not useful for the petitioner. 10 The Hon’ble Supreme Court in paragraph 6 in case of R.B. Ramlingam V/s R.B. Bhvaneswari reported in 2009 (2) SCC 689 has held, “ A large number of judgments were cited before us by learned counsel. It is not necessary at this stage to discuss each and every judgment cited before us for the simple reason that Section 5 of the Limitation Act, 1963 does not lay down any standard or objective test. The test of “ sufficient cause ” is purely an individualistic test. It is not an objective test. Therefore, no two cases can be treated alike. The statute of limitation has left the concept of “ sufficient cause ” delightfully undefined, thereby leaving to the court a well-intentioned discretion to decide the individual cases whether circumstances exist establishing sufficient cause. There are no categories of sufficient cause. The categories of sufficient cause are never exhausted. Each case spells out a unique experience to be dealt with by the court as such. ” Therefore, what follows from paragraph 6 of the Judgment cited supra is that the test of “ sufficient cause ” is purely an 11 individualistic test and it is not an objective test and, therefore, no two cases can be treated alike. In paragraph 6 of reported Judgment of the Apex Court in case of P.K. Ramachandran V/s State of Kerala and another reported in AIR 1998 Supreme Court 2276, the Supreme Court has held as under : “ Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay can not be sustained. This Appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs. ” Keeping in mind aforementioned two Judgments of the Apex Court and insufficient cause pleaded in the application before the 12 Tribunal and in view of the well reasoned Judgment and Order of the Tribunal, no interference is called for. The Writ Petition is devoid of any merits and same is dismissed. 12. The Civil Application No. 8113 of 2009 for taking additional document on record is allowed and disposed of. 13. In view of the disposal of the Writ Petition, Civil Application, if any, stands disposed of. Interim relief, if any, stands vacated. [ S.S. SHINDE ] JUDGE knp/WP7689.08