Union Of India & Ors vs Samir Chandra Kar

Ajay Kumar Mittal, CJ

This is an application filed under Section 5 of the Limitation Act, 1963 (for short "the Act") for condonation of 1624 days delay in preferring the review petition seeking review of the judgment and order dated 04.02.2015 passed by the Division Bench in WA No.3 of 2014.

Briefly, the relevant facts as narrated in the application may be noticed.

The applicants states that the respondent had filed WP (C) No.53 (SH) of 2011 praying for a direction to frame single set of Recruitment Rules for the posts in the pre-revised scale of Rs. 5000-8000/-, Rs. 5500-9000/- and Rs. 6500-10,500/- with a further prayer to convene a review Departmental Promotion Committee (DPC) to rectify/fix the promotion specified in the post of Senior Accountant and to consider the writ petitioner (respondent herein) during DPC conducted in the month of February and March, 2010 for promotion to the post of Accounts Officer w.e.f. 2011.

The said writ petition was disposed of vide common judgment and order dated 17.12.2012 by directing the respondents (appellants herein) to amend the Assam Rifles [Accounts Officer, Head Quarters, Inspector General, Assam Rifles (North)] Recruitment Rules, 2002 to incorporate the changes brought about by merger of the posts of Senior Accountant with the post of Accounts Officer, Junior Accounts Officer and Record Officer positively within three months and thereafter to convene a review DPC to consider the writ petitioner (respondent herein) for promotion to the post of Accounts Officer in the pre-revised pay scale of Rs. 6500-10,500/- by upgrading to the higher pay Band-II corresponding to the pre-revised scale of Rs. 7450-11500/- with consequential benefits within the next two months.

Being aggrieved by the said directions, the applicants preferred an appeal being WA No.3 (SH) of 2014. The said appeal was also dismissed as infructuous based on the additional affidavit dated 11.12.2014 filed on behalf of Union of India that the matter was at final stages of consideration. In the meantime, the Contempt Case No.33 of 2013 filed by the respondent was dismissed by this Court vide order dated 07.07.2015 holding that the Secretary had prayed for some more time and the matter was vigorously pursued with the department of Personnel & Training.

According to the applicants that in terms of the order dated 04.02.2015 passed in WA No.3 (SH) of 2014, a single file for compliance of the judgment and order dated 17.12.2012 was submitted to the MHA on 19.06.2015 but after detailed deliberations, the Ministry of Finance, Department of Expenditure vide letter dated 17.07.2015 after a considerable period of time, had advised that it is not feasible to merge the post as directed by this Court and implementation of the same would have wider ramification for all allied services including Government cadres. Subsequently, the applicants met the counsel for seeking appropriate legal opinion, whereupon, the counsel on perusal of the records and documents forwarded the same to the concerned department with a suggestion to file review against the order dated 04.02.2015 passed in WA No.3 (SH) of 2014 in WP (C) No.53 of 2011 and WP (C) No.54 (SH) of 2011 before this Court. Thereafter, the applicants' office sent the legal opinion for approval to file review petition to the higher authority and upon receipt of the approval decided to file review against the order dated 04.02.2015. Further, according to the applicants in Contempt Case No.13 of 2016 filed by the respondent, the applicants are pursuing the case in contempt proceedings and counter affidavit had been filed and the matter is pending adjudication before this Court.

The counsel for Union of India, thereafter, prepared a draft of review petition against the order dated 04.02.2015 passed in WA No.3 of 2014, which was forwarded to the concerned department on 26.07.2019, and, the draft review petition was finally forwarded back to the counsel on 08.08.2019 for finalization, which was filed on 16.08.2019 with the delay of 1624 days. Hence, the present application for condonation of 1624 days delay in preferring the review petition has been filed.

The issue under consideration in this petition is whether the delay of 1624 days in filing the review application before this Court is liable to be condoned in the facts and circumstances of the case.

Examining the legal position relating to condonation of delay under Section 5 of the Act, it may be observed that the Supreme Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another: (2010) 5 SCC 459 laying down the broad principles for adjudicating the issue of condonation of delay, in paras 14 & 15 observed as under:

"14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause". employed in Section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate- Collector (L.A.) v. Katiji: [(1987) 2 SCC 107: AIR 1987 SC 1353, N. Balakrishnan v. M. Krishnamurthy: [(1998) 7 SCC 123]: JT (1998) 6 SC 242] and Vedabai v. Shantaram Baburao Patil: [(2001) 9 SCC 106]."

It was further noticed by the Apex Court in R.B. Ramlingam v. R.B. Bhavaneshwari 2009 (1) RCR (Civil) 892 as under:-

".....It is not necessary at this stage to discuss each and every judgment cited before us for the simple reason that Section 5 of the Limitation Act, 1963 does not lay down any standard or objective test. The test of "sufficient cause" is purely an individualistic test. It is not an objective test. Therefore, no two cases can be treated alike. The statute of limitation has left the concept of "sufficient cause" delightfully undefined, thereby leaving to the Court a well-intentioned discretion to decide the individual cases whether circumstances exist establishing sufficient cause. There are no categories of sufficient cause. The categories of sufficient cause are never exhausted. Each case spells out a unique experience to be dealt with by the Court as such."

It was also recorded that:-

"For the aforestated reasons, we hold that in each and every case the Court has to examine whether delay in filing the special leave petition stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition...."

From the above, it emerges that the law of limitation has been enacted which is based on public policy so as to prescribe time limit for availing legal remedy for redressal of the injury caused. The purpose behind enacting law of limitation is not to destroy the rights of the parties but to see that the uncertainty should not prevail for unlimited period. Under Section 5 of the Act, the courts are empowered to condone the delay where a party approaching the court belatedly shows sufficient cause for not availing the remedy within the prescribed period. The meaning to be assigned to the expression "sufficient cause" occurring in Section 5 of the Act should be such so as to do substantial justice between the parties. The existence of sufficient cause depends upon facts of each case and no hard and fast rule can be applied in deciding such cases.

Further, the Apex Court noticed that the courts should adopt liberal approach where delay is of short period whereas the proof required should be strict where the delay is inordinate. It was also observed that judgments dealing with the condonation of delay may not lay down any standard or objective test but is purely an individualistic test. The court is required to examine while adjudicating the matter relating to condonation of delay on exercising judicial discretion on individual facts involved therein. There does not exist any exhaustive list constituting sufficient cause. The applicants are required to establish that inspite of acting with due care and caution, the delay had occurred due to circumstances beyond their control and was inevitable.

The question regarding whether there is sufficient cause or not, depends upon facts of each case and is to be decided taking totality of events which had taken place in a particular case. The facts as narrated in paras 6 and 7 hereinbefore would not constitute sufficient cause in preferring the review petition belatedly. There has not been any satisfactory explanation for the inordinate delay of 1624 days in preferring the review petition and therefore, delay cannot be accepted to be reasonable.

Consequently, the application seeking condonation of delay is dismissed. As a result thereof, review petition is also dismissed as time barred.