State of Hp and Anr. Vs Jan Dei

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2025:HHC:1860

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMP(M) No.2035 of 2024 in LPAST No.51714 of 2024 in CWPOA No.1790 of 2020 Decided on: 07.01.2025

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State of H.P. and Ors. .......Applicants/Appellants Versus Jan Dei ...Respondent

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Coram

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Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice. Hon’ble Mr. Justice Satyen Vaidya, Judge.

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Whether approved for reporting?¹

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For the applicants/appellants: Mr. Anup Rattan, Advocate General with Mr. Govind Korla, Additional Advocate General. For the respondent: None.

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G.S. Sandhawalia, Chief Justice (Oral)

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The present appeal has been preferred against the order of the learned Single Judge passed in CWPOA No.1790 of 2020 decided on 07.10.2023, which is barred by 1 year 28 days. Resultantly,

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1 Whether the reporters of Local Papers may be allowed to see the judgment?

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CMP(M) No.2035 of 2024 has been filed for condonation of delay in filing the present LPA.

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We are of the considered opinion that there is no sufficient cause made out in the application as apparently the copy of the judgment was not even applied for over a year, as per the averments made in the application itself. It was applied on 21.10.2024 though having been passed on 07.10.2023 and it was delivered immediately on the same date and thereafter the same was vetted and filed on 4.11.2024. Apparently, the applicants were not interested in filing the appeal as such, they did not even apply for the copy of the judgment and there is nothing to show that sufficient cause has been made out to condone the delay.

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It is settled principle of law that an application for condonation of delay filed by the State has to be given certain latitude, but the same does not mean that the State can sit back and not even take any steps to challenge the order, which is apparent in the present case. 4. The employee in question is a Class IV Baildar working in a Tribal area seeking her rights, as such, and therefore, we do not wish

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to call upon her to file a reply and entail the necessary expenses of litigation.

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The principles have been laid down by the Apex Court in O riental Aroma Chemical Industries Ltd. vs. Gujarat Industrial Development Corporation and Anr. reported in (2010) 2 S.C.R. 1172 and Postmaster General and Ors. vs. Living Media India Limited and Anr. reported in (2012) 3 SCC 563 . The same reads as under :

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“25. We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster v. Living Media India Ltd. as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months.

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26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the

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prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.

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27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before

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us.

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28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be

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accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.”

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6. Similarly in Esha Bhattacharjee v. Managing Committee

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of Raghunathpur Nafar Academy reported in (2013) 12 SCC 649 , the principles were laid down as to the fact that non-pedantic approach has to be applied and that substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. Further, it was held that liberal approach has to be kept in mind but it cannot be allowed a totally unfettered free play and the conduct, behaviour and attitude should be the relevant factors to be taken into consideration, though, the State may be given some acceptable latitude . The said principles read as under:

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From the aforesaid authorities the principles that can be broadly be culled out are:

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21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

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21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

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21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

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21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

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21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

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21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

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21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

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21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

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21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

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21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

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To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -

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22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

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22.2 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

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22.3 (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

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22.4 (d) The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.

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Accordingly, in view of the principles laid down, we do

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not find any plausible reason to allow this application.

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Accordingly, the application is dismissed along with LPAST No.51714 of 2024.

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( G.S. Sandhawalia ) Chief Justice

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January 07, 2025 ( Satyen Vaidya ) (ankit) Judge

State of Hp and Anr. v. Jan Dei

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State of Hp and Anr. v. Jan Dei

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