State of Madhya Pradesh and 7 others vs Rodmal and another

Shantanu Kemkar, J.—HEARD on I.A.No.4793/2011 an application seeking condonation of delay in filing the appeal. The delay is reported to be of 402 days. In the application, supported by affidavit of Smt. Shilpa Jain, District Organizer, Adim Jati Kalyan Vibhag, Dewas - Officer-incharge of the case, it has been stated that the copy of the order dated 31.08.2010 passed by learned Single Judge of this Court in Writ Petition No.4172 of 2009 (S) was received on 22.10.2010. On 29.10.2010 the matter was sent to the Government Advocate for opinion. The opinion was received from the office of the Government Advocate on 10.11.2010. The proposal for filing appeal was immediately sent to the State Government on 19.11.2010. The permission was granted by the Law Department on 07.02.2011. It was received by the District Organizer on 18.02.2011. It has been stated that in the meanwhile District Organizer/Officer-in-charge of the case was on maternity leave from 06.04.2011 to 22.09.2011. In the circumstances, after resuming on duties, she got the Memo of Appeal drafted and filed. In this process the delay has occurred. Having considered the averments made in the application and the submissions made by the parties, we are of the view that the delay in filing the appeal has satisfactorily been explained. The delay does not appear to be deliberate and appears to be bona-fide. Accordingly the delay is condoned.

With consent of the parties, the matter is heard finally as also on I.A.No.3197/2012 an application filed by the appellants for taking additional documents on record.

This intra Court appeal u/s 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is filed against the order dated 31.08.2010 passed by the learned Single Judge in Writ Petition No.4172 of 2009 (S). By the said order, the learned Single Judge allowed the writ petition and quashed the order dated 16.07.2003 passed by the District Education Officer accepting the writ petitioner''s application seeking voluntary retirement. The writ Court also quashed the order passed by the Appellate Authority on 11.08.2008 and held the writ petitioner to be entitled for 50% back wages from the date of acceptance of his application for voluntary retirement i.e. with effect from 16.07.2003 till 31.08.2009, the age on which he attained the age of superannuation. The learned Single Judge also directed to revise the payment of terminal dues payable to the writ petitioner by treating him in service up to 31.08.2009.

The learned Deputy Govt. Advocate argued that the learned Single Judge has committed an error in placing reliance on some application dated 30.06.2003 seeking withdrawal of application / notice of voluntary retirement. According to her in fact no such application was filed by the writ petitioner and no such application is even available in the records of the appellants. She submitted that in fact by submitting various applications dated 16.02.2004, 05.08.2004, 17.08.2004 and 19/20.08.2004 (the copies of which are filed along with I.A. No.3197/2012) the writ petitioner made repeated requests for accepting his voluntary retirement and for withdrawing his appeal dated 30.09.2003. According to her in the circumstances, there was no occasion for the appellants to have decided the said appeal dated 30.09.2003. According to the appellants the documents filed along with I.A. No.3197/2012 clearly reveals the conduct of the first Respondent to the effect that for all the time he was pressing for accepting his request for voluntary retirement and for making payments of his dues on account of his application for voluntary retirement. The learned Deputy Govt. Advocate submits that these documents are having material bearing on the fair adjudication of the matter and had these documents been on record, the learned Single Judge would not have passed the orders on the basis of writ petitioner''s so called application dated 30.06.2003 and his appeal dated 30.09.2003.

Having considered the submissions made by the learned Deputy Govt. Advocate and after going through the written submission submitted by the first Respondent and his oral submissions, we are of the view that for the just and fair adjudication of the matter these documents filed by the appellants along with I.A. No.3197/2012 are material and as such the same deserves to be taken on record.

We accordingly allow the application [I.A. No.3197/2012] and order for taking on record the documents filed along with it. Having regard to the fact that these documents may have a material bearing on the for the just and fair adjudication of the matter, we feel that instead of deciding the appeal after considering the effect of these documents, it would be appropriate to remit the matter to the writ Court for deciding the writ petition afresh after considering the effect and impact of the documents filed by the appellants along with I.A.No.3197/2012.

As a result, we set-aside the order passed by the learned Single Judge and remit the matter back to the writ Court for deciding the writ petition afresh keeping in view the effect and impact of the documents which have been filed by the appellants along with I.A.No.3197/2012. The writ appeal stands allowed to the extent indicated above.