SCA/7241/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7241 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE D.H.WAGHELA ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= PATHAN AKILKHAN RASULKHAN - Petitioner(s) Versus INSPECTOR GENERAL (WS) & 2 - Respondent(s) ================================================= Appearance : MR GIRISH K PATEL for Petitioner(s) : 1, MS RV ACHARYA for Respondent(s) : 1 - 3. ================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 16/06/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) RULE. Ms.R.V. Acharya, learned standing counsel waives service of Rule for the respondents. In the facts and circumstances, the petition is taken up for final disposal. SCA/7241/2008 2/5 JUDGMENT 2. What is challenged in this petition under Article 226 of the Constitution is the revisional order dated 10.04.2007 passed by the Deputy Inspector General (WS) CISF, Mumbai and the appellate order dated 12.01.2007 of Deputy Inspector General (WS) CISF, Mumbai, who in turn, confirmed the order dated 13.12.2005 by which respondent No.3 – Disciplinary Authority awarded the punishment of reduction of salary from Rs.3200/- to Rs.3125/- for a period of one year with future effect and also treating the suspension period as suspension. 3. In view of the order that we propose to pass, it is not necessary to set out the facts in detail. The departmental inquiry was initiated against the petitioner on the charge of not performing the regimental duties. The petitioner's defence was that he had, in fact, performed such duties. The Disciplinary Authority did not accept the defence. The Appellate Authority dismissed the appeal only on the ground that it was filed beyond the period of limitation of 30 days from the date of receipt of the order. The Revisional Authority also dismissed the revision after noting that the Appellate Authority had dismissed the appeal on the ground of limitation. 4. Mr.Girish K. Patel, learned advocate for the petitioner, submitted that although the appeal filed on 16.09.2006 for challenging the order dated 13.12.2005 may prima facie appear to be considerably delayed by 237 days, as a matter of fact, if the petitioner's explanation for delay is considered in proper perspective, the delay was only of a few days inasmuch as the petitioner received the penalty order dated 13.12.2005 on 22.12.2005 and, therefore, the appeal was required to be filed by 21.01.2006. However, before expiry of the said period of limitation, the petitioner had made an application on 19.01.2006 seeking further 30 days extension for preferring the appeal and the petitioner had also sought personal hearing by letter dated SCA/7241/2008 3/5 JUDGMENT 14.03.2006. In respect of the above application, the petitioner was accordingly granted personal hearing by the Appellate Authority – respondent No.2 herein on 14.07.2006 and it was only on 10.08.2006, that the petitioner was served with a copy of the e-mail sent by the authority to the authority superior to the petitioner who had received that e-mail on 19.07.2006. As per the said e-mail massage, the petitioner was asked to prefer the appeal. As per the Appellate Authority's intimation dated 19.07.2006, the petitioner was directed to prefer the appeal and the petitioner was to be informed accordingly. The petitioner ultimately preferred appeal on 15.09.2006. Mr.Patel, learned advocate for the petitioner, therefore, submits that after receiving intimation on 10.08.2006, the petitioner filed appeal on 16.09.2006 i.e. within a period of 37 days and, therefore, the delay was only to the tune of 7 days. 5. On the other hand, Ms.R.V. Acharya, learned standing counsel for the respondents, has opposed the petition and submitted that the petitioner was required to file the appeal within a period of 30 days and, if at all, the petitioner required any longer time for preferring the appeal, it was for the petitioner to prefer the appeal within a reasonable time and to submit an application for condonation of delay along with the appeal memo. Instead of doing so, the petitioner filed an application seeking extension of the period of limitation for filing the appeal and, therefore, the time taken by the authorities in considering and granting the said application cannot be taken into consideration for the purpose of ascertaining whether the petitioner had shown cause for condoning the delay of 237 days in filing the appeal. 6. Before dealing with the rival submissions, we may refer to the relevant statutory provisions in the Central Industrial Security Force Rule, 2001. Rule 47 thereof reads as under:- SCA/7241/2008 4/5 JUDGMENT “47. Period of limitation for appeals - No appeal under these rules shall be entertained unless it is submitted within a period of 30 days from the date on which the appellant receive a copy of the order appealed against. Provided that the appellate authority may entertain the appeal after the expiry of the said period, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.” On a bare perusal of the above Rule, it is clear that the person aggrieved with the order of the Disciplinary Authority is required to file the appeal within a period of 30 days from the date of receipt of the order and that, if the appeal is filed thereafter, the Appellate Authority has power to entertain the appeal, if it is satisfied with the statement of a sufficient cause for not preferring the appeal in time. In view of the above Rule, while there is some substance in the legal submission being made by the learned standing counsel for the respondents, we cannot over look the fact that when the petitioner preferred the application dated 19.01.2006 seeking extension of the time limit for preferring the appeal, instead of simply replying to the petitioner that the petitioner was required to file the application for condonation of delay along with the memo, respondent No.2 did entertain the application for extension and even granted personal hearing to the petitioner on 14.07.2006 and thereafter, sent e-mail message to the petitioner's superior officers on 19.07.2006 asking the petitioner to prefer the appeal. The petitioner accordingly preferred the appeal within a period of 37 days from the date of receipt of such e-mail on 10.08.2006. In this factual background, it cannot be said that the petitioner had acquiesced into the order dated 13.12.2005 of the Disciplinary Authority nor can it be said that the petitioner was negligent SCA/7241/2008 5/5 JUDGMENT through out the period of 237 days. In fact the petitioner was sick at the relevant time and was suffering from viral fever (chickengunia) and in respect of which, the petitioner has also produced medical certificate. Having regard to the nature of ailment and the fact that the petitioner had preferred the appeal within 37 days from the date of receiving e-mail intimation as indicated above, we are of the view that the Appellate Authority ought to have considered the petitioner's explanation in its proper perspective and entertained the appeal on merits. 7. In view of the above discussion we set aside the appellate order dated 12.01.2007 of the respondent No.2 and the revisional order dated 10.04.2007 of the respondent No.1 and we remand the matter back to the Appellate Authority i.e. respondent No.2 - Deputy Inspector General (WS)CISF, Mumbai to decide the petitioner's appeal dated 16.09.2006 on merits without raising the bar of limitation. 8. We may make it clear that we have not gone into the merits of the controversy between the parties and the Appellate Authority shall be at liberty to decide the matter in accordance with law without being influenced by any observations made in this order. Rule is made absolute to the aforesaid extent. (M.S. SHAH, J.) (D.H.WAGHELA, J.) Hitesh