Allowed

Smt. Asha Krushnaji Kulkarni v. the Regional Dy. Commissioner, Social Welfare, Pune Division and Ors.

Bombay HC12 Sept 2014WP/10575/2013

Case brief

AI extract

What is this about?

This writ petition challenged the refusal of the Regional Deputy Commissioner to condone delay in an appeal against termination of service. The Court held that the Code prescribed no limitation, the explanation for delay was sufficient due to bona fide reliance on a Tribunal order, and quashed the refusal while restoring the appeal.

What did the court decide?

Impugned order dated 4 July 2013 quashed. Petitioner's appeal restored to respondent No. 1 for hearing and decision within six months.

Smt. Asha Krushnaji Kulkarni Vs the Regional… — Pension and Retirement Benefits | Bombay HC (2014)

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WP-10575-13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 10575 OF 2013

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Smt. Asha Krushnaji Kulkarni ..Petitioner

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versus

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The Regional Dy. Commissioner, Social Welfare, Pune Division & Ors. ..Respondents

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Mr. P. J. Thorat for Petitioner.

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Mr. N. V. Bandiwadekar with Mr. Sagar Mane for Respondent Nos. 2 and 3. Ms P. S. Cardozo – AGP for State - Respondent Nos. 1 and 4

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CORAM : M. S. SONAK, J.

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Date of Reserving the Judgment : 28 August 2014 Date of Pronouncing the Judgment : 12 September 2014

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JUDGMENT :-

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1] By order dated 22 April 2014, this Court had directed the disposal of this petition finally, at the stage of admission itself. In response, respondent Nos. 1 and 2 (Special School) have filed their affidavit in reply in the matter.

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2] This petition is directed against the judgment and order dated 4 July 2013 (impugned order) made by the Regional Deputy

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Commissioner, Social Welfare, in his capacity as the appellate authority under the Special School Code governing Schools for disabled, declining to condone the delay in preferring an appeal against the termination of the petitioner's services by respondent Nos. 1 and 2 (Special School).

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3] Mr. P. J. Thorat, learned counsel for the petitioner,

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made the following submissions in support of the petition:

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(A) That the Special Code prescribes no period of limitation for instituting an appeal against termination. Accordingly, respondent No. 1 has committed a jurisdictional error in refusing to entertain the appeal, on the ground that no sufficient cause was shown to condone the delay;

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(B) The material on record establishes that the petitioner had furnished sufficient cause in the matter. Without adverting to the same, and relying solely upon the decision of the School Tribunal, which had declined to condone delay of 956 days in seeking restoration of the appeal instituted earlier before it, respondent No. 1 has mechanically and without any application of independent mind declined to condone delay. The objection raised by the Special School, that the School Tribunal lacked in jurisdiction to entertain appeal against termination of a special school teacher,

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had been upheld by the School Tribunal. Therefore, even the finding of the School Tribunal on the aspect of lack of sufficient cause for condonation of delay, was a finding, without jurisdiction. In as much respondent No. 1 has relied upon a finding without jurisdiction, there is jurisdictional error and the impugned order deserves to be set aside;

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(C) In matters of condonation of delay, the length of the delay is not as material as the explanation furnished for the same. In the present case, the petitioner was bonafide pursuing her appeal before the School Tribunal. Even the School raised objection to the jurisdiction of the School Tribunal, almost after a period of 12 years from the date when the appeal was instituted. In such circumstances, sufficient cause was shown for not approaching respondent No. 1 promptly. This aspect has been completely ignored by respondent No.1 in making the impugned order.

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4] Mr. Bandiwadekar, learned counsel for the Special School submitted that even when no period of limitation is prescribed by a statute, it is incumbent upon a party aggrieved to approach the authorities for redress, within 'reasonable time'. In the present case, the services of the petitioner were terminated on 19 June 1999 and the petitioner had approached respondent No. 1,

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which is the proper authority only on 20 November 2011. The delay in such circumstances, is inordinate and inexplicable. Besides, Mr. Bandiwadekar submitted that there was nothing wrong in respondent No. 1 placing reliance upon the judgment and order dated 1 October 2012 made by the School Tribunal declining to condone delay of 956 days in seeking restoration. The circumstance that the School Tribunal lacked jurisdiction to entertain the petitioner's appeal, was clearly irrelevant in as much as the petitioner has not taken out any proceeding to void the judgment and order dated 1 October 2012. Finally, Mr. Bandiwadekar submitted that since the petitioner herself, by a very sketchy application, applied for condonation of delay, it is impermissible for her to now contend that no period of limitation has been prescribed or applies in the matters of institution of appeals under the Special Code questioning termination of services of a special teacher. For all these reasons, Mr. Bandiwadekar submitted that this Court ought not to interfere with the impugned order.

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5] Ms. Cardozo, learned AGP for respondent Nos. 1 to 4 very rightly submitted that respondent No. 1 as an appellate authority, has exercised quasi judicial functions. Therefore, the impugned order speaks for itself. On this basis, Mr. Cardozo submitted that the petition as filed, be dismissed.

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6] The rival contentions as aforesaid are now taken up for consideration together with the basic facts, about which there is no serious dispute between the parties.

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7] The petitioner's services came to be terminated by the Special School on 19 June 1996. Under the belief that her conditions of service were governed by Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 (“MEPS Act”), the petitioner preferred an appeal to the School Tribunal under Section 9 of the MEPS Act on 20 July 1999. The Special School submitted its response, but no objection was taken to the jurisdiction of the School Tribunal to entertain an appeal of such nature. On 5 November 2008, the petitioner's Advocate submitted a pursis to the effect that he had no instructions from the petitioner. On the said basis and on the same date, the School Tribunal dismissed the appeal for want of prosecution. Neither was the Advocate was called upon to produce evidence of the service of notice to the petitioner nor did the School Tribunal deem it fit to issue any notice to the petitioner before dismissing the appeal for default. Upon the petitioner coming to know about dismissal, a good three years thereafter, the petitioner applied for restoration together with

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application seeking condonation of delay of 956 days. Special School submitted its objection on 14 March 2012. On 26 April 2012, the objection was amended, inter alia, to contend that the provisions of MEPS Act were not at all applicable to a Special School and consequently no appeal lay before the School Tribunal. Instead, it was asserted that the proper remedy available to the petitioner was by means of appeal to the Regional Deputy Commissioner, Social Welfare (respondent No. 1) under Section 86(1) of the Special Schools Code ('Special Code'). The School Tribunal by its judgment and order dated 1 October 2012 declined to condone the delay and went on to state that even if it was assumed that there is some plausible reason for condonation of delay, the appeal before the School Tribunal was itself not tenable in view of the provisions of Section 86(1) of the Special Code. The petitioner, on 20 November 2012 preferred appeal before respondent No.1 in terms of Section 86(1) of the Special Code. Although there is no period of limitation prescribed for preferring an appeal under the Special Code, the petitioner possibly as a matter of abundant caution, on 18 December 2012 applied for condonation of delay, the Special School filed objections on 27 May 2013. Respondent No. 1, on 4 July 2013 made the impugned order, declined to condone the delay.

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8] The Special Code, which admittedly governs the service conditions of the petitioner and the Special School, prescribes no period of limitation for institution of an appeal questioning the termination of services. This position was in fact conceded by the learned counsels for the respondents. Where the law does not prescribe any period of limitation, the doctrine of 'reasonable period' shall have to be made applicable.¹ Therefore, though respondent No. 1 may have erred in dismissing the petitioner's appeal as barred by limitation, nevertheless the issue remains as to whether the petitioner can be said to have preferred her appeal within reasonable period.

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9] In order to determine whether the petitioner has instituted the appeal within a reasonable period, it is useful to apply the tests normally applicable for determining whether 'sufficient cause' has been shown by applicant to prefer proceedings beyond the prescribed period of limitation. In such matters, the emphasis cannot be merely upon the quantum of delay alone. What is important is the quality of the cause shown or the explanation furnished. Length of delay is no matter, acceptability of the explanation is the only criteria. Sometimes, delay of shortest range

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1 Londhe Prakash Bhagwan vs. Dattatraya Eknath Mane & Ors. 2014(1) Bom. C.R. 312

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may be uncondonable due to want of acceptable explanation. Whereas in certain other cases, delay of very long range can be condoned as explanation is found satisfactory. In matters of condonation of delay, essentially discretion is vested in the authority. Once the authority accepts explanation as sufficient, it is the result of positive exercise of discretion which is normally not to be disturbed by the superior court, unless of course the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But where the authority declines to condone the delay, the superior court would be free to consider the cause shown for the delay afresh and come to its own finding even untrammeled by the conclusion of the authority. The reason for such difference in approach is that 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 authority in different situations is not because on the expiry of such time, a bad cause transforms into a good one. In every case of delay, there may be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. If the explanation furnished, does not smack of malafides or is not put forth as a dilatory strategy, the court is obliged to show utmost consideration to the suitor.²

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2 N. Balakrishnan vs. M. Krishnamurthy (1998) 7 SCC 123

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10] In the present case, within hardly a month from the date of termination, the petitioner instituted an appeal under Section 9 of the MEPS Act before the School Tribunal. The appeal was pending before the School Tribunal till the year 2008, when on 5 November 2008, the same was dismissed for default. Restoration was applied for, almost 956 days beyond the period prescribed. The explanation furnished was that the petitioner lost both her parents by the year 1996; she was married in the year 1999, but soon thereafter her husband expired, leaving behind a daughter in her care; she had neither legal knowledge nor financial means to take appropriate decision in the matter; and that she bonafide believed that her Advocate would keep her posted of the progress of the matter. This application was declined by the School Tribunal on two grounds. Firstly, that the cause shown was not sufficient and secondly, that in terms of Section 86(1) of the Special Code, the School Tribunal lacked jurisdiction to entertain the very appeal, in respect of which restoration was applied for. This was on the basis of the objection belatedly raised by the Special School on 26 April 2012. This means that the Special School raised objection to the jurisdiction of the School Tribunal, a good twelve years after the petitioner instituted appeal against her termination. In fact in the show cause notice

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dated 14 July 1998 issued to the petitioner before her termination, the Special School had made reference to the MEPS Act, as being the law governing the conditions of service of the petitioner.

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11] If the aforesaid circumstances are cumulatively considered, then it may not be said that the appeal preferred by the petitioner before respondent No. 1, was after the lapse of some reasonable period. In any case, sufficient cause has been shown by the petitioner for preferring the appeal before respondent No. 1 on 20 November 2012, even though her services came to be terminated on 19 June 1999. The period between 20 July 1999 and 1 October 2012, was spent by the petitioner, in pursuing her appeal, before the School Tribunal under Section 9 of the MEPS Act. The objection to the jurisdiction of the School Tribunal was belatedly raised by the Special School only on 26 April 2012. The Special School positively attributed to the bonafide belief held by the petitioner that appeal under Section 9 of the MEPS Act was the proper remedy to question termination of her services. Clearly therefore, respondent No. 1 was duty bound to take into consideration such relevant material and circumstances at the stage of making the impugned order.

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12] Instead, respondent No. 1, relying almost entirely

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upon the order dated 1 October 2012 made by the School Tribunal declining to condone the delay in seeking restoration of the appeal, has chosen to decline to condone the delay in preferring appeal under Section 86(1) of the Special Code. This is despite the fact that Section 86(1) of the Special Code does not prescribe for any period of limitation to institution of appeal by a teacher in a Special School. This constitutes an error apparent on face of record. The School Tribunal in its order dated 1 October 2012 has itself held that it lacked jurisdiction over the subject matter. The finding on the aspect of condonation of delay, was therefore a finding without jurisdiction. There is no question of respondent no. 1 placing reliance upon such a finding, which was made by the authority, which concededly had no jurisdiction.

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13] There is no merit in the submission of Mr. Bandiwadekar that as long as the School Tribunal's order dated 1 October 2012 is not set aside, the findings recorded therein cannot be styled as 'void'. In the peculiar circumstances of the present case, such proposition, is clearly inapplicable. The petitioner, in fact has accepted School Tribunal's order dated 1 October 2012, to the extent it holds that the proper remedy available to the petitioner is

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appeal under Section 86(1) of the Special Code and not an appeal under Section 9 of the MEPS Act. Upon acceptance of such jurisdictional position, the petitioner preferred appeal before respondent No. 1 under Section 86(1) of the Special Code hardly within a period of about 50 days from the date of School Tribunal clarifying that it had no jurisdiction. In such circumstances, respondent No. 1 was duty bound to independently apply its mind to the cause shown, rather than abdicate discretion to the School Tribunal, which even according to the Special School was an authority which lacked jurisdiction in the matter.

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14] There is equally, no merit in Mr. Bandiwadekar's submission that since the petitioner herself applied for condonation of delay before respondent No. 1, she is estopped from contending that there is no provision under the Special Code prescribing any period of limitation to prefer appeals against termination. There can be no estoppel against the law. The application dated 18 December 2012 made by the petitioner to seek condonation of delay, was obviously by way of abundant caution. In any case, the application was one to satisfy respondent No. 1 that the appeal was indeed preferred within a reasonable period , though it may appear without any deeper scrutiny, to be instituted belatedly.

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15] This is not a case where the petitioner has been indolent or has slept over her rights. The petitioner had been pursuing bonafide, the issue of her termination before the School Tribunal for a period of over twelve years. Some issue was raised about delay in seeking restoration of the appeal which came to be dismissed by the School Tribunal on 5 November 2008. The dismissal and consequent plea for restoration, is strictly speaking irrelevant, once the School Tribunal has itself ruled that it lacked jurisdiction in the matter. In any case, the explanation furnished was certainly sufficient. In construing the expression 'sufficient cause ', court has to exercise discretion so as to advance substantial justice. Even though the applicant appears not to be as vigilant as he ought to have been, yet, if his conduct does not on the whole, warrant to castigating him as an irresponsible litigant, the discretion should be exercised in his favour. True, that an applicant is required to be more vigilant, but his failure to adopt such extra vigilance should not be a ground for denying him even one chance.³ In this case, there is no material on record to indicate the petitioner's Advocate had furnished her notice before he filed a pursis on 5 November 2008 reporting 'no instructions'. The School

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Tribunal, could have itself issued notice to the petitioner, informing

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3 M. K. Prasad vs. P. Arumugam (2001) 6 SCC 176

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her about the next date. Instead the School Tribunal, on the basis of the pursis chose to dismiss the appeal for default on the very same date. Therefore, if all such circumstances are cumulatively considered, it is clear that the appeal made by the petitioner to respondent No. 1, was made within reasonable time . The impugned order, is therefore unsustainable and is required to be set aside.

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16] The petitioner, despite pursuing the issue of her termination for over such length of time, as till date, been deprived a hearing on merits. At least this much is due to a Special Teacher from a Special School, who is now possibly in reduced circumstances on account of her widowhood and responsibility to upkeep and maintain her daughter. Since respondent No. 1 had dismissed the appeal only on the ground that the same was delayed, when in fact the provisions of the Special Code did not even prescribe for any period of limitation, there is no option but to restore the appeal to the file of respondent No.1 for adjudication on merits. This, respondent No.1 shall do as expeditiously as possible and in any case within six months from the date the petitioner produces an authenticated copy of this order before it.

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17] In the result, this petition is disposed of with the

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following order:

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(A) The impugned order dated 4 July 2013 made by the respondent No. 1, is hereby quashed and set aside;

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(B) The petitioner's appeal questioning the termination of her services is restored to the file of respondent No. 1, who is directed to hear and decide the appeal as expeditiously as possible and in any case within a period of six months from the date of production of authenticated copy of this Order;

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(C ) The petitioner and respondent Nos. 2 and 3 (Special School) are directed to appear before respondent No. 1 on 1 October 2014 at 11.00 a.m. for seeking directions in the matter of disposal of the appeal.

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(D) Rule is made absolute to the aforesaid extent.

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(E) There shall be no order as to costs.

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Chandka

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(M. S. SONAK, J.)

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Smt. Asha Krushnaji Kulkarni v. the Regional Dy. Commissioner, Social Welfare, Pune Division and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Asha Krushnaji Kulkarni v. the Regional Dy. Commissioner, Social Welfare, Pune Division and Ors.

Case brief

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What did the court decide?

What the court decided

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