Allowed

Maya Sarkar v. State of West Bengal and Ors.

Calcutta HC1 May 2023WPLRT/37/2023

Case brief

AI extract

What is this about?

The High Court set aside the Tribunal's order dismissing a condonation of delay application. The Tribunal was directed to dispose of the main matter within two months. The petitioner was required to deposit costs with the State Legal Services Authority.

What did the court decide?

Impugned order set aside; application for condonation of delay allowed subject to deposit of Rs. 3,400/-; Tribunal directed to decide main matter within two months.

Maya Sarkar Vs State of West Bengal and Ors. — Service and Employment | Calcutta HC (2023)

01.05.2023

WPLRT 37 of 2023

Maya Sarkar Vs.

Court : 04 Maya Sarkar Item : 08 Matter : WPLRT Vs. Status : DO Bench ID : 266048 The State of West Bengal & Ors. Transcriber : NANDY

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Mr. Gopal Chandra Ghosh, Advocate Mr. Sibasis Ghosh, Advocate Mr. Dearika Nath Mukherjee, Advocate Mr. Pradip Kumar Ghosh, Advocate

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……for the Petitioner

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Mr. Supratim Dhar, Advocate

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……for the State

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Mr. Puspendu Charkraborty, Advocate

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……for the Private Respondent

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Mr. Biswajit Mukherjee, Advocate Mr. Piyali Sengupta, Advocate

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……for the Kolkata Municipal Corporation

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Let the affidavits of service filed in Court today, be kept with the record.

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It discerned in course of hearing that pending an application under Section 5 of the Limitation Act for condonation of delay in filing the tribunal application, the parties were directed to exchange affidavits in the main matter. By the impugned order the Court proceeded to hear out the application for condonation of delay and dismissed the same. As a resultant effect, there is no finding recorded in the tribunal application. The Tribunal proceeded to reject the said application that the statements made in the course of the hearing are not reliable and does not instill judicial conscience that the writ-petitioner was prevented by sufficient cause.

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The aforesaid observation appears to have been made for the simple reason that supplementary affidavit came to be filed in the course of hearing giving further explanations in relation to a period which according to the writ-petitioner was not sufficiently explained. Since the

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supplementary affidavits were filed, it gives an impression in the minds of the Members of the Tribunal that those facts have been subsequently introduced and to be treated as afterthoughts.

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Learned Advocate appearing for the other respondents submits that the matter was, in fact, intended to be heard finally as they disclosed their stand on merit by filing affidavit yet there is no decision taken by the Tribunal in this regard.

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Let us consider whether the observations of the Tribunal in relation to an application for condonation of delay, can be sustained.

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Admittedly the Thika Controller conclusively heard the matter on 12.04.2019 but did not indicate the date for passing the judgment. The judgment/order came to be passed on 04.09.2019 which according to the petitioner was not within the knowledge. Furthermore, it is indicated that the learned Advocate did not attend the office of the Thika Controller due to his illness relatable to the old-age and finally when he went to the office of the Thika Controller on 28.11.2019, he came to know of the order being passed and an application for certified copy was filed. The certified copy was made available on 09.01.2020. However, in the meantime, further notice was received by the writ-petitioner on 17.12.2019 from the office of the Thika Controller that the next date is fixed on 09.01.2020. However, instruction was given to take steps to challenge the said order but the learned Counsel was unable to do so till the first week of March 2020 because of his illness and reporting of high number of cases due to COVID-19. Ultimately there was a lockdown declared in

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the country and after the relaxation, the tribunal application was filed.

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It is no doubt true that during the lockdown there was a complete disruption to the access which was gradually relaxed and the functioning of the Tribunal or Court were also very limited. Apart from the same, the Court must encourage the litigation to be decided on merit instead of dismissing the same on the anvil of limitation. The adjudication on merit would ultimately render the litigation to attain finality and will also inculcate a sense in the litigant that justice has been imparted. The Court should not swayed simplicitor on the fact that the supplementary affidavit came to be filed disclosing the events which led such delay as a ground for refusal to condone the delay. The Court shall be guided by sufficiency of the cause and should not adopt a pedantic and/or technical approach in defeating the meritorious case.

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It is apposite to observe that the moment the Tribunal decided that the parties should exchange their affidavits in the main matter; it should not be too technical on the application for condonation of delay and should have decided the matter on merit.

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We feel that the impugned order warrants interference. The same is hereby set aside. As a consequence whereof the application for condonation of delay is allowed subject to deposit of costs assessed at Rs.3,400/- with the State Legal Services Authority within a week from date.

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The State Legal Services Authority shall keep such amount in an account earmarked for juvenile, if deposited.

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Since the parties have exchanged affidavits in the main matter, we presume that the same is otherwise ready for disposal and the Tribunal is directed to dispose of the same within two months from the date of communication of this order after affording an opportunity of hearing to the parties.

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With these observations, the writ-petition being WPLRT 37 of 2023 is disposed of .

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Liberty is granted to the petitioner to pray for any interim relief, if warrants so, and the Tribunal shall decide the same keeping in mind the time limit indicated hereinabove, on its merit.

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(Harish Tandon, J.)

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(Prasenjit Biswas, J.)

Maya Sarkar v. State of West Bengal and Ors.

Case brief

What is this about?

What did the court decide?

Maya Sarkar v. State of West Bengal and Ors.

Case brief

What is this about?

What did the court decide?

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