State of Karnataka vs BM Muniappa and The Hon''ble Lokayukta

B.V. Nagarathna, J.—These writ, appeals assail the order of the learned Single Judge. Writ Appeal No. 1463/2011 is with regard to the order dated 19.01.2010 passed in W.P. No. 15788/2003 while, Writ Appeal No.2781/2011 assails the order dated 04.02.2010 passed in W.P No. 18486/2002.

By order dated 19.01.2010, learned single judge allowed the writ petition and quashed Annexure-E, which is the report of the Hon''ble Lokayukta u/s 12(3) of the Karnataka Lokayukta Act, 1984, (Annexure-Q in W.P. No. 18486/2002), while Annexure-G is order dated 04.04.2002 sanctioning an enquiry against five engineers including the appellants herein in terms of Section 14A of Karnataka Civil Service (CCA) Rules, 1957. The said orders were assailed by the appellants in the writ petitions arid since the same were quashed, the State has preferred these appeals.

We have heard the learned Government Advocate for the State and learned Senior Counsel for the respondents.

At the outset, we notice that Writ Appeal No. 1463/2011 is filed 4C6 days after the passing of the order and excluding the prescribed period of limitation, there is a delay of 376 days in filing the appeal. Insofar as W.A.No.2781/2011 is concerned, the same is filed 412 days after the passing of the order and the actual delay is 382 days.

Learned Senior Counsel for the respondents at the outset contended that there is inordinate delay in filing these appeals and that sufficient explanation has not been furnished by the State and that even if some latitude has to be shown towards state appeals, in the instant case, the appeals would have to be dismissed only on the ground of delay and latches without going into the merits of the case. Drawing our attention to the affidavit appended to the application filed for condonation of delay, it was contended that the explanation offered is not sufficient to condone the delay. Even though it may not be necessary to explain each day''s delay, nevertheless, the fact remains that the delay in filing of these appeals would not merit any condonation and therefore, the appeals would have to be dismissed on that ground alone. In this context, reliance has been placed on a decision of the Division Bench of the Patna High Court in the case of State of Bihar and Another Vs. Puran Chandra Mahto, in which there is a reference to the decision of the Supreme Court in the case of State of Haryana Vs. Chandra Mani and others, .

In the said premise, we have considered these appeals on the question of delay in filing the same and in that regard, we have considered the explanation proffered for the delay in filing the said appeal. As far as the Writ Appeal No. 1463/2011 is concerned, it is noticed that the learned Single Judge allowed the writ petition by order dated 1901.2010. The application for certified copy was made on 21.01.2010 and the same was received on 23.01.2010. Subsequently, the matter was said to have been put up for legal opinion on 30.01.2010 and the legal opinion was furnished on 06.02.2010 and the file was sent to the Head of Legal Cell. It appears that thereafter the certified copy of the order dated 19.01.2010 was misplaced along with the legal opinion. After the disposal of W.P. No. 18486/2002 on 04.02.2010, the certified copy of the said order was obtained on 04.03.2010 and legal opinion was furnished on 12.03.2010. Since, it was noticed that certified copy of the order dated 19.01.2010 which was obtained on 2801.2010 was misplaced, a photocopy of the order dated 19.01.2010 was received from the office of the Hon''ble Lokayukta and the matter was submitted to the Head of Legal Cell. on 10.05.2010 seeking authorisation to file appeals in both the writ petitions. Between 10.05.2010 and 08.07.2010 time was spent in obtaining the necessary sanction for preferring the appeal and the file was submitted to the concerned Government Advocate for preparing the writ appeal on 17.07.2010. At that stage, since the certified copy of the order dated 19.01.2010 was not available an application for obtaining a. fresh certified copy was made on 03.08.2010. It is seen from the records that the said certified copy was received on 09.10.2010 and subsequently, the time has been spent once again in seeking clarification from the Urban Development Department and the draft of the writ appeal was prepared only in January, 2011 and the appeal has been filed on 01.03.2011.. Paras 5 and 6 of the application filed in W.A. No. 1463/2011 read as follows:

It is submitted that thereafter, disposed file was searched and on 17.07.2010 the file was placed before the concerned Government Advocate for preparing the writ appeal After verification of the Government order and disposed writ petitions, the concerned Government Advocate noticed. that there is no availability of the order of the learned single Judge in W.P. No 15788/2003 and he has sent the file to the Section seeking the said order. Then the letter was once again returned to the Department for furnishing of the certified copy of the order dated 19.01.2010.

Thereafter, it is noticed that the neither the Head of the Legal Cell nor the Secretary to Government Urban Development Department has received the legal opinion of the Government Advocate dated. 06.02.2010 and the certified copy of the order dated. 19.01.2010 was not despatched to the Head of the Legal Cell. The said certified copy of the order was searched in the office of the Advocate General and it is noticed that the said copy was not at all addressed in the office by virtue of non availability of the said order. Once again, the office of the Advocate General has applied for the certified copy of the order on 19.01.2010 and 03.08.2010 and the certified, copy of the order dated 19.01.2010 was received by the office of the Advocate General on 09.10.2010. Thereafter, once again the file was placed before concerned Government Advocate for preferring writ appeal. After perusal of the certified copy of the order and the file, the learned Government. Advocate has written a letter in the month of September 2010 to the Urban Development: Department seeking clarification in the matter and called for the entire records pertaining to the enquiry initiated against the 1st respondent. Further sought for clarification regarding issuance of the D.O letter by the Secretary. Urban Development Department, instead of the Government Order for referring the matter to the Lokayuktha from September 2010 to November 2010, the officials of the Department correctly not able to explain the reasons for such letter and. they have searched the entire records. Thereafter, they are able to show the Government Advocate for issuance of the letter dated 08.07.1999 only after obtaining the approval of the then Chief Minister. Thereafter much discussions in the month of January 2011, the draft writ appeal was prepared. However, there was no delay note furnished by the Secretary to Government, Urban Development Department and requested for furnishing the delay note. Thereafter, once again the delay note was furnished in which there was no specific reference regarding the obtainment of the order dated 19.01.2010 second time. After much discussions. an application for condoning the delay was prepared on 18.02.2011. In view of the above said circumstances, there is inadvertent loss of the certified copies and the supply of the information to the Government Advocate and clarification regarding issuance of D.O letter necessitated some delay in filing the writ appeal. At the time of furnishing of the clarifications, the Secretary. Urban Development Department has also upon clarification from the DPAR regarding issuance of the D.O letter.

As far as Writ Appeal No. 2781/2011 is concerned, in the application for condonation of delay, it is stated that W.P. No. 18486/2002 was disposed of on 04.02.2010 and certified copy of the order was obtained on 11.02.2002. Thereafter, the concerned Government Advocate prepared his legal opinion on 04.03.2010 and the file was sent to the Head of the Legal Cell on 06.03.2010. But the same was received on 12.03.2010. At that stage, it was noticed that the matter had to be considered along with the order passed by the learned single judge in W.P. No. 15788/2003. The matter was discussed at length between 31.03.2010 and 10.05.2010 and thereafter the case was put up to the Head of Legal Cell on 10.05.2010, seeking authorisation to prefer an appeal. Subsequently, till 17.07.2010, time was spent in obtaining approval of the Principal Secretary to Government, Urban Development Department. Paras 5 and 6 of the application filed in W.A.No.2781/2011 are identical to what has been extracted supra.

Before considering the question as to whether delay in filing of these appeals ought to be condoned, it would be apposite to refer to the following dicta of the Supreme Court in the case of Rajendra Singh V/s. Santa Singh (AIR 1973 SC 2573)'' wherein it has been observed as follows:

The object of law of limitation is to prevent disturbance or deprivation of what may have acquired in equity and injustice.

Thus, the law of limitation not only intends to create certainty in the courts proceedings but also maintains discipline in the judicial proceedings so as to provide uniformity amongst the litigants: yet no law has been enacted in the matter of limitation giving upper hands creating any discrimination amongst the litigants if the State emerges as a litigant. Thus, it does not depend upon the whims or convenience of the Stale agency in taking a decision for filing the appeals leisurely according to the convenience of the State officers and if little latitude is shown in. this regard in favour of the State, on account of cumbersome bureaucratic procedure, why not the private litigants be also treated with the same yard-stick and if that will be so then what would, be the purpose and necessity of the law of limitation. Therefore, if the private litigants are expected to proceed by complying with the law of limitation at the cost of their vocation and occupation i.e., business and cultivation activities why the State can not be treated at par upon whom heavy expenditure is being incurred by public exchequer.

In the same vein, it is observed in the case of P.K. Ramchandran V/s. State of Kerala (AIR 1996 SC 2276) as follows:

Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power 10 extend the period of limitation on equitable grounds.

In fact, even in the case of State of Haryana Vs. Chandra Mani and others, . it has been observed thus:

When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note making, file pushing and passing on the buck ethos, the delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. Decisions are taken by the officer/agencies proverbially at slow pace and encumbered process of pushing the file from table to table and keeping it on table for considerable time causing delay-intentional, or otherwise is a routine.

However, what we have to consider in the instant case is as to whether the law-knowing officers of the State who are not ignorant about rigorous requirement and may not have been made accountable in the discharge of their official duties would be entitled to be shown indulgence merely because the appeals are filed on behalf of the State. In this context, it would be relevant to keep in mind that the Law of Limitation seeks to end litigation so as to avoid uncertainties and the parties being dragged to the law courts for an indefinite period. In other words, law conies to the rescue to those who are vigilant and those who do not sleep over their rights. Section 5 of the Limitation Act is, therefore, an exception to the aforesaid salutary principles and when the delay is sufficient in law to be condoned, then the courts would treat it as an exceptional case.

We have stated in detail the steps taken pursuant to the passing of the orders in the two writ petitions and also have extracted in verbatim, the time spent before filing these two appeals. In W.A. No. 1463/2011, what is highlighted is stated that on account of the certified copy of the order dated 19.01.2010 being lost and a fresh certified copy was obtained thereafter, the appeal was filed on 01.03.2011. We note that the order impugned was passed on 19.01.2010. The application for certified copy was made only on 03.08.2010 and after obtaining the same on 09.08.2010, the appeal has been filed only on 01.03.2011. The explanation offered as to what transpired after the legal opinion was given by Government Advocate till the filing of the appeal, in our view, is wholly insufficient to condone the delay of 376 days in filing the appeal. It is also brought to our notice that the petitioner had already retired from service on attaining the age of superannuation on 31.03.2000 and despite being successful in the writ petition has not received his pensionary and other terminal benefits.

In W.A.No.2781/2011 also a similar explanation is offered. In fact, atleast when W.P.NO. 18486/2010 was disposed of on 04.02.2010 and the certified copy was obtained on 16.02.2010, at that stage, the concerned officers ought to have been vigilant of the fact that reliance was placed on the order dated 19.02.2010 passed in W.P. No. 15788/2004 while disposing of the writ petition and therefore, a decision had to be taken to file appeals in both the cases. The explanation offered for filing the appeal over a year after obtaining the certified copy of the order in this appeal also does not merit any consideration for condoning the same. Similarly, the petitioner in W.P. No. 18486/2002 has retired from service during the pendency of the writ petition and we are told that he also has not received pensionary and terminal benefits.

The extracts made supra clearly bring to the fore identical explanations given, without having regard to the fact that the officers of the state have applied their mind not once but twice with regard to filing of these appeals. When W.P. No. 18486/2002 was disposed of on 4.2.2010, following the decision dated 19.1.2010 in W.P. No. 15788/2003 and opinion was given to prefer appeals, then reference to the order dated 19.1.2010 was necessary and thereafter a concerted endeavour ought to have been made to file appeals in both the case after obtaining the certified copy of the order dated 19.1.2010. A perusal of the explanation offered to condone the delay only makes apparent the casual and cavalier manner in which time has been spent in pushing the files from desk to desk and from one office to another. The various dates mentioned in the application only reveals the great extent of rime taken by various officers/authorities in taking a decision to file appeals. Once a decision was taken once again, the rigmarole of obtaining sanctions /approvals has been adverted to. Despite liberty being reserved by the learned single judge, no fresh action has been initiated by the State Government. On the other hand, there is delay of over one year in preferring these appeals and in the interregnum, while taking steps to file these appeals, the respondents have been deprived of their pensionary benefits. We find that this has caused considerable prejudice to the respondents. The State has not acted diligently in prosecuting these appeals and the explanation proffered by the State is insufficient in law to merit any condonation. In fact, it is only farcical. Therefore, the appeals are dismissed on the ground of delay and latches.