1 wp3525-10.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3525 OF 2011 Shri Mahadev Ganpati Muthal .. Petitioner Vs. Khed Vyapari Dharmaday Educational Society, Khed & Ors. .. Respondents Mr.N.V.Bandiwadekar for the petitioner Mr.S.D.Rairikar, A.G.P. for respondent no.3 Mr.L.S.Deshmukh i/b Mr.Pramod M. Patil for respondent nos.1 and 2 CORAM: K.K. TATED, J. DATE: 22nd JULY, 2011 PC: 1. Heard the learned counsel for the parties. 2. By this petition under Articles 226 and 227 of the Constitution of India, petitioner original appellant challenges the order dated 25.3.2011 passed by the learned Presiding Officer, School Tribunal, Kolhapur rejecting petitioner’s application for condonation of delay in preferring appeal under section 9 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 in respect of order of termination 2 wp3525-10.doc of service dt.16.3.2010. The petitioner was working with respondent school as a Teacher. Initially, the respondent school terminated petitioner’s service by order dt.10.4.2007. The said termination order was challenged by the petitioner by preferring an Appeal no.33 of 2007 before the School Tribunal. During the pendency of the said appeal, the petitioner made an application to the respondent management on 16.8.2009 requesting them to withdraw the termination order and allow him to join the services. Pursuant to the said application the respondent management passed resolution dt.16.8.2009 being resolution nos.2, 3 and 4. As per those resolutions the respondent management decided to take back the petitioner in service subject to that he should first withdraw the Appeal no. 33 of 2007 pending before the Tribunal. They also decided that they will allow the petitioner to join the service subject to the approval from the Education Department. On the basis of the said assurance, petitioner made an application dt.17.9.09 before the School Tribunal for withdrawal of the said appeal. The Tribunal on 18.9.09 allowed the petitioner to withdraw the said appeal. Thereafter the respondent management allowed the petitioner to join services. The respondent management 3 wp3525-10.doc forwarded the petitioner’s proposal to the Education Department. The Education Department by its communication dated 11.2.2010 rejected the respondent managements proposal to grant approval to the petitioner’s reinstatement. Therefore, respondent management by letter dt.16.3.2010 terminated petitioner’s services. The said termination order was challenged by the petitioner by preferring an Appeal under section 9 of the M.E.P.S. Act, 1977. The said appeal was filed by the petitioner on 11.8.2010. As there was delay in preferring the appeal, petitioner preferred an application for condonation of delay dt.11.8.2010 on the ground that after dismissal, the petitioner approached the respondent management and requested them to reinstate him with all back wages. Respondent management assured and stated that they will consider the petitioner’s prayer. But as the respondent management failed to consider the petitioner’s request for reinstatement, he preferred an Appeal before the School Tribunal and therefore, there was delay. 3. The learned counsel for the petitioner submits that Tribunal erred in coming to the conclusion that the petitioner failed to show any sufficient cause for condonation of delay of 3 months 4 wp3525-10.doc 26 days. He further submits that the Tribunal without considering the petitioner’s application on merits decided the same on the basis of previous order passed by Tribunal in petitioner’s application for condonation of delay in appeal preferred in respect of termination order dt.10.4.2007. He submits that order in previous application and in the present application for condonation of delay are identical. This shows that the Tribunal without considering the petitioner’s application for condonation of delay rejected the same. He submits that the explanation given by the petitioner for the delay for preferring application to the Tribunal is fully supported by the facts and circumstances put forward by him and in the legal parlance which amounts to sufficient cause for the delay in filing application before the Tribunal and as such the order passed by the Tribunal rejecting the petitioner’s application is liable to be set aside and his application deserves to be allowed. 4. On the other hand, the learned counsel for respondent nos.1 and 2 management vehemently opposed the present petition. He submits that the petitioner failed to disclose sufficient cause in his application for condonation of delay in preferring appeal 5 wp3525-10.doc against the order of termination dt.16.3.2010 and therefore, there is no substance in the present Writ Petition and the same is liable to be dismissed. He submits that the Tribunal categorically held that the appeal preferred by the petitioner itself is not maintainable as the petitioner previously preferred the Appeal no.33 of 2007 against the termination order dt. 10.4.2007 and the said termination order is still in existence. He further submits that the Tribunal rightly held that the present appeal is not maintainable and therefore, petitioner’s application for condonation of delay is rejected. In his affidavit in reply in the present petition he stated that the petitioner has not at all explained the delay and more particularly the aspects such as when did the cause of action arise and what prevented him from filing the appeal. Bare and bald statements made are not sufficient for condonation of delay. Petitioner has to justify each and every day of the delay. Therefore, the learned Presiding Officer, School tribunal has rightly refused to condone the unexplained and inordinate delay. On the basis of the submissions, the learned counsel for respondent nos.1 and 2 submits that the reasons recorded by the Tribunal in rejecting petitioner’s application for condonation of delay are according 6 wp3525-10.doc to law and therefore, the present petition is liable to be dismissed. 5. The learned A.G.P. for respondent nos.3 and 4 filed their affidavit in reply dt.27.6.2011. In their affidavit in reply they stated that the petitioner was declared surplus teacher and therefore, he came to be absorbed in respondent no.2 School from 1994. Respondent no.2 is a Government recognized and aided private secondary school run by respondent no.1, Society. In the year, 2006, a departmental enquiry was initiated against the petitioner. Petitioner faced the said enquiry and after holding him guilty, the management terminated the services of the petitioner by order dt.10.4.07. In view of the aforesaid facts and circumstances, this Hon’ble Court may pass appropriate orders. 6. In the present case, by order dt.25.3.2011 the Tribunal decided petitioner’s application for condonation of delay in preferring an Appeal under section 9 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977. The Tribunal considered whether the appeal filed by the petitioner is maintainable or not. The Tribunal also considered the merits of main appeal itself. The Apex court categorically 7 wp3525-10.doc held that at the time of deciding the application for condonation of delay, the court should not consider the merits of the appeal but consider the reasons given by the applicant for condonation of delay. 7. In the present case, instead of considering the reasons given by the petitioner for condonation of delay, the Tribunal considered the petitioner’s main appeal on its merits. 8. It is to be noted that initially the petitioner was terminated on 10.04.2007 and thereafter he preferred Appeal no.33 of 2007. During the pendency of the said appeal, the respondent management passed resolutions in their meeting dated 16.8.2009 and decided to reinstate the petitioner if petitioner unconditionally withdrew his Appeal no.33 of 2007 and subject to the approval from Education Officer. On the basis of the said assurance the petitioner withdrew his Appeal no.33 of 2007 and thereafter respondent nos.1 and 2 reinstated petitioner in service. After reinstatment of petitioner respondent nos.1 and 2 forwarded the proposal for approval of the appointment to the Education Officer. The Education Officer by his letter dt. 11.2.11 declined to grant approval to the petitioners reinstatement. In view of the Education officer’s letter dt. 8 wp3525-10.doc 11.2.201, respondent nos.1 and 2 management issued a letter dt.16.3.2010 to the petitioner and terminated his service. The petitioner in his application for condonation of delay averred that he wrote several letters to respondent nos.1 and 2 to consider his request for reinstatement. Respondent nos.1 and 2 failed to consider his request for long. He approached the Tribunal thereafter, and therefore, there was delay in preferring the Appeal. 9. The Apex Court in the matter of N. Balakrishna vs. M. Krishnamurty reported in (1998) 7 SCC 123 held that the words “sufficient cause” should be construed liberally. Object of fixing time limit is not made to destroy rights. It is founded on public policy fixing life span for the legal remedy for the general welfare. Paragraphs 8, 9, 10, 11 and 12 read thus: “8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of 9 wp3525-10.doc life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.” “9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.” “10. The reason for such a different stance is thus: 10 wp3525-10.doc 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 situations is not because on the expiry of such time a bad cause would transform into a good cause.” “11. Rule of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a 11 wp3525-10.doc legislatively fixed period of time.” “12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].” 10. In similar way the Apex Court in the matter of Bhagmal vs. M.P. Co­operative Marketing & Consumer Federation Ltd. & Others. reported in (2003) 11 SCC 727 the Supreme Court condoned the delay of six years after setting aside the order of the High Court. The head note A of the reported judgment reads thus: “Limitation Act, 1963 – S. 5 – Delay of 6 years in filing statutory appeal – Condonation of, by Appellate Authority concerned – Interference with by High Court – Property – Where the Appellate Authority acting within its jurisdiction condoned the delay after being 12 wp3525-10.doc satisfied with the facts stated in relation thereto, the High Court in exercise of its powers under Articles 226 and 227 of the Constitution erred in interfering with the said order of Appellate Authority, particularly when it enabled the party to pursue his statutory remedy.” 11. Even the Apex Court in the matter of Shangrila Food Products Ltd. and another vs. Life Insurance Corporation of India and another reported in (1996) 5 SCC 54 held that the High Court in exercise of jurisdiction under Article 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and sufficient justice. 12.In view of the submissions made by the learned counsel for the petitioner and the explanation given by the petitioner in his application dt.11.8.10 for delay of 3 months and 26 days, I am satisfied that the petitioner made out sufficient cause for condonation of delay. (a) Writ Petition is allowed. (b) Impugned order dt.25.3.2011 passed by learned Presiding Officer, School Tribunal, Kolhapur in Misc.Application No.27 of 13 wp3525-10.doc 2010 (Exh.1) is set aside. (c) Tribunal is directed to register the petitioner’s appeal under section 9 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 dt.11.8.2010 against the order of termination of service dt.16.3.2010 and decide the same on its own merits. (d) No order as to costs. (K.K.TATED,J.)