Dismissed

State of Orissa v. Narayan Sa

Orissa HC22 Jun 2016FAO/558/2015

Case brief

AI extract

What is this about?

The court dismissed the State's application for condonation of delay under Section 5 of the Limitation Act. Relying on Supreme Court precedent, the court held that impersonal machinery and procedural red tape are insufficient reasons, requiring instead a plausible and acceptable explanation or bona fide effort.

What did the court decide?

The Misc. Case application for condonation of delay was dismissed, and consequently, the appeal was dismissed.

Learned counsel for the appellants submits that the Government is impersonal m achinery. Thus latitude is permissible in which Government is a litigant. He further submits t hat the appellants were prevented by sufficient cause in not filing the appeal in time. Delay in filing the appeal is neither deliberate nor intentional. Hence the same be condoned.

In Office of the Chief Post Master & Others Vrs. Living Media India Ltd. & Ano ther, (2012) 3 SCC 563, after survey of the earlier decisions, the apex Court in paragraphs 27 , 28, 29 and 30 held as follows:-

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

28. Though we are conscious of the fact that in a matter of condonation of delay when ther e was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession h as to be adopted to advance substantial justice, we are of the view that in the facts and circ umstances, the Department cannot take advantage of various earlier decisions. The claim on acc ount of impersonal machinery and inherited bureaucratic methodology of making several notes ca nnot be accepted in view of the modern technologies being used and available. The law of limit ation undoubtedly binds everybody, including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay a nd there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they pe rform their duties with diligence and commitment. Condonation of delay is an exception and sho uld not be used as an anticipated benefit for government departments. The law shelters everyon e under the same light and should not be swirled for the benefit of a few.

30. Considering the fact that there was no proper explanation offered by the Department f or the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

That the statutory provisions of Section 24-C of the Orissa Education Act, 1969 requires for f iling of Appeal within 60 days from the date of passing of the judgment. But in the present GI A case the learned Tribunal passed the judgment dated 10.12.2013 certified copy of which was r eceived in the Administrative Department on 09.01.2014 vide Letter No.4190/SET dated 31.12.201 3 sent by Secretary, State Education Tribunal. However, after maintaining due paraphernalia, s uch as marking of such Letter, diarizing of the same etc. the said Judgment was received by th e administrative Branch dealing with such matter on 25.01.2014.

That the relevant file dealing with the subject was processed on 01.02.2014 in the Adm inistrative Deptt. It is relevant to mention that certain documents were found short fall, whi le receipt of such memorandum for which (O/O the Director, Higher Education) appropriate quart er was contacted over phone and on personal contact to avail the same for examination of the r elevant file. However, Director, Higher Education was requested vide Letter No.2869 dated 05.0 2.2014 to furnish memorandum on the eligibility of the Respondent No.1 and admissibility of th e post held by him. The Administrative Department received notice on 04.08.2014 the Execution case No.60/2014 filed by the Respondent for execution of the impugned judgment/orders passed i n GIA Case No.271/2012 to file show cause compliance affidavit for which the Director, Higher

Education was requested vide letter No.18602/HE dated 14.08.2014 to expedite submission of app ropriate memorandum in the matter. However, Director, Higher Education after causing verificat ion of services of the Respondent submitted desired memorandum vide his Letter No.27268/dated 20.07.2015 which was received in the Administrative Department on 21.07.2015. Thereafter, rele vant file was processed in the Administrative Branch on 31.07.2015 examining the eligibility o f the Respondents, it was referred to the Branch Officer concerned who in turn endorsed the fi le to Law Section on 06.08.2015. The Law Section on 07.08.2015 returned the file to the Branch Officer opining to challenge the impugned judgment on obtaining concurrence of Law Department . The relevant file was endorsed to Principal Secretary by the Branch Officer concerned on 07. 08.2015. That on 10.08.2015 such file was endorsed to Law Department for giving their concurre nce to file FAO.

That the Law Deptt. returned the file on 28.08.2015 reflecting their opinion to challe nge the legality and correctness of the orders dated 10.12.2013 passed by Learned State Educat ion Tribunal before the Honble High Court and such file was received in the Administrative dep artment on 04.09.2015. However, such file was received in the administrative Branch on 07.09.2 015.

That relevant proposal was sent to the office of the Advocate General, Orissa, Cuttack for preparation of FAO vide Letter No.20309/HE., dated 10.09.2015 with request to prepare FAO memorandum and file the same before the Honble High Court at the earliest. After sending prop osal to the Office of the Advocate General, Odisha, Cuttack, such file was transmitted to the Law Section of the Administrative Deptt. on 19.09.2015 for monitoring filing of FAO. That the office of Advocate General, Odisha vide their telephonic massage dt.30.09.201 5 called for the officers well aware to take up discussions in the matter for finalizing the F AO grounds. After such discussions were taken place on 01.10.2015, the draft FAO was finalized by the Law Officer concerned in the Office of the Advocate Genra, Odisha, Cuttack on 03.10.20 15. Since 04.10.2015 was a public Holiday, the FAO was scrutinized and made fair on 05.10.2015 and the same was filed in the Registry of the Honble High Court on 06.10.2015. Hence a delay of 575 days was caused which is calculated excluding the duration from the date of delivery of judgment in the GIA case (10.12.2013) till it was received in the Administrative Department f rom the Secretary, State Education Tribunal, Bhubaneswar on 09.01.2014 and the gress period of 60 days as provided under Section 24(C) of the Orissa Education Act, 1969 for filing of such FAO.

The grounds stated in the application for condonation of delay do not constitu te sufficient cause. No cause much less any sufficient cause has been shown in not filing the appeal in time. There is gross negligence on the part of the appellants in filing the appeal. Moreover, there is inordinate delay in filing this appeal.

State of Orissa v. Narayan Sa

Case brief

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State of Orissa v. Narayan Sa

Case brief

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What did the court decide?

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