THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM v. THE UNION OF INDIA & Anr.

Advocate for the Petitioner : MR. K P MAHESWARI Advocate for the Respondent : SC, NF RLY :: BEFORE :: HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

O R D E R

28.09.2022 Heard Ms. C. Saha, learned counsel appearing for the appellant. Also heard Mr. CKS Baruah, learned Standing Counsel appearing for the NF Page No.# 2/4 Railways.

This is an appeal under Section 23 of the Railway Claims Tribunal Act of 1987 whereby the judgment and order dated 11.03.2021 passed by the Railways Claims Tribunal, Guwahati Bench in MA/GHY/2015/0025 is under challenge.

The claim application was filed after two months and six days of delay.

The learned counsel for the respondent has drawn attention of this Court to a judgment of this Court dated 21.07.2022 passed in MFA No.54/2021 and submitted that the issue involved in the instant appeal is squarely covered by the said judgment where this Court has refused to condone the delay of six months and fourteen days.

Paragraphs 36 and 37 of the judgment dated 21.07.2022 passed in MFA No.54/2021 are quoted as under: “36. From the above contentions, it would be clear that the fault in not filing the claim application on time was due to the fault of the counsel. However, the applicants/appellants herein cannot be oblivious to the statutory mandate of filing the claim applications within time and their responsibility do not come to an end merely by handing over the papers to their legal counsel. The litigant has to also see to that his/her/their counsel/legal practitioner had duly filed the claim applications within time, more so, taking into consideration that the appellants before this Court, who were the applicants before the Tribunal, were regularly in the business of transporting goods through the Railways. Inaction on the part of the appellants tantamounts to sleeping over their rights and the aspect of gross negligence creeps into the fold. It may have been that the Page No.# 3/4 applicants/appellants were under an impression that their counsel had filed his/her/their application within time or the learned counsel for the appellant/applicant kept the appellants/applicants at dark that the applications were not filed within time. There is no material brought on record to that effect except the submission made by the learned counsel for the appellants. The concept of reasonableness therefore has to be embedded in order to ascertain the question of due diligence which in effect would also show as to whether the applicants/appellants were negligent in pursuing with their claim applications.

37. Upon applying the concept of due diligence, this Court is of the opinion that a period of 3 (three) months from the last date of filing the claim applications can be taken as a reasonable period within which the appellants/applicants ought to have exercised the due diligence by making enquiries with his/her/their counsel and found out as to whether the applications were duly filed or not. This is more so when there are no materials brought on record to show that the applicants/appellants were under impression that the claim applications were filed on time after taking into consideration the proviso to Section 17 (1) of the Act of 1987. Any period beyond 3 (three) months from the last date of filing, in the opinion of this Court, cannot be constituted to be reasonable for condoning the delay inasmuch as, in the opinion of this Court, the same would negate the provisions of Section 17 (2) of the Act of 1987 and tantamount to legislation by this Court.”

Reverting to the case in hand in MFA No.54/2021, this Court has opined that any period beyond three months from the date of filing cannot be constituted to be reasonable for condoning the delay inasmuch as, the Page No.# 4/4 same would negate the provision of Section 17(2) of the Railway Claims Tribunal Act, 1987 and tantamount to legislation by court.

In the case in hand, the delay is two months six days. Therefore, the view taken in MFA No.54/2021 is not applicable.

It is a settled position of law that while considering a prayer for condonation of delay in filing of a case, strict approach need not be taken. The Railway Claims Tribunal has taken a strict approach. This Court is of the opinion that the delay has been satisfactorily explained and therefore the delay stands condoned. The judgment and order dated 11.03.2021 passed by the Railways Claims Tribunal, Guwahati Bench in MA/GHY/2015/0025 is set aside.