Civil Appeal No. 7295 of 2019 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.507 of 2020 An appeal under Section-24-C of the Orissa Education Act, 1969. ……………… State of Odisha & Another …. Appellants -versus- Sukanti Jena and Others …. Respondents For Appellants : M/s. S.K. Samal, Addl. Government Advocate For Respondents :M/s. Mr. M. K. Pati, Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing: 11.01.2024 and Date of Judgment:20.02.2024 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. I.A. No.371 of 2020 1. This is an application filed by the appellants seeking condonation of delay of around 767 days in filing of the appeal in question. 2. It is contended that GIA Case No.199 of 2015 was originally filed by the deceased employee before the Tribunal challenging the order passed by the Appellant No.2 on 05.12.1998, wherein the order of approval issued // 2 // in favour of the deceased employee vide office order dated 27.03.1998 was recalled. The Tribunal without proper appreciation of the ground on which the order of approval was recalled vide order dated 05.12.1998, while allowing the claim so made in the GIA case, directed Appellant Nos.1 and 2 to release all the arrear dues of the deceased employee, who is a Peon of Dina Krushna College, Jaleswar in the district of Balasore. 2.1. It is contended that even though the GIA case was allowed vide judgment dated 05.05.2018 and after due processing of the same, Law Department in its opinion dated 25.10.2018 expressed its view to implement the order, but the file thereafter was sent to Finance Department, to obtain their view with regard to implementation of the order in question. 2.2 Finance Department on 30.10.2018 returned the file with its opinion to re-look the views rendered by the Appellant No.2, wherein Appellant No.2 had opined to challenge the impugned judgment. But thereafter when Law Department again examined the file and gave its opinion to implement the order, approval of the Government was obtained on 29.12.2018 to implement the order in question. Accordingly, vide Govt. order dated 15.04.2019, Director, Higher Education-Appellant No.2 was requested to issue Page 2 of 23 // 3 // Post Facto Approval of the order in favour of the deceased employee. But since in the meantime Hon’ble Apex Court in its judgment dated 16.09.2019 in Civil Appeal No.7295 of 2019 in the case of Anup Kumar Senapati Vrs. State of Odisha and Others held that after repealing of the Grant- in-Aid Order, 1994, benefit of Grant-in-Aid under GIA Order, 1994 cannot be extended, basing on such decision of the Apex Court, appellant No.1 decided to cancel the approval order issued in favour of the deceased employee vide order dated 13.01.2020 and decision was taken to challenge the judgment so passed by the Tribunal on 05.05.2018. Accordingly, the relevant file was moved to office of Advocate General on 20.03.2020 and after due processing of the same, the appeal was ultimately filed on 14.05.2020. 2.3. It is accordingly contended that this Court taking into account the stand taken in the I.A. with regard to condonation of delay in filing the appeal was pleased to issue notice of the I.A. subject to the appellants depositing a sum of Rs.50,000/- on or before 24.07.2023. The appellants have also complied the said direction by depositing Demand Draft bearing No.161105 dated 24.07.2023 for Rs. Rs.50,000/-. It is also contended that in terms of the order passed by this Court on 17.08.2023, the Page 3 of 23 // 4 // amount of Rs.50,000/- has been deposited in an Interest- bearing Account of the Registry. 2.4. Making all the submissions learned Addl. Govt. Advocate contended that since the delay in filing the appeal has been properly explained by the Appellants in I.A., the delay is required to be condoned. The stand taken by the Appellants in Para-2 to 7 are reproduced hereunder:- “2. That, the statutory provisions of Section 24-C of the Orissa Education Act, 1969 requires for filing of Appeal within 60 days from the date of passing of the order. In the present GIA case, the learned Tribunal disposed of the same vide order dated 05.05.2018 and the certified copy was applied by learned Govt. Advocate on 05.05.2018. The same was delivered on 10.05.2018. The certified copy was sent to the office of the Appellant No.1 vide his Letter No.1394 (2)/GA, SET, dtd.25.05.2018 and was received in the office of the Appellant No.1 on 02.06.2018. It was diarised vide Dy. No.27038/HE dtd.05.06.2018. After receipt of the certified copy of the impugned judgment, the Administrative Branch in the office of the Appellant No.1 processed relevant file on 22.05.2018 suggesting to obtain memorandum from the Director, Higher Education vide letter No.15212/HE, dtd.23.05.2018. The Director, Higher Education thereafter called for service records from the principal of the concerned college and after a prolonged pursuation made with the college authorities they supplied appropriate records of the college at a very belated stage for which the Director, Higher Education conducted verification of service of the Respondent No.1 and prepared the memorandum on 07.07.2018. Such memorandum was submitted to the office of the appellant No.1 by Appellant No.2 vide his Letter No.25008 dtd.11.07.2018. The delay caused is due to late communication of service records of the Respondent No.1 from the concerned college to the office of the Director, Higher Education. The bonafideness of such delay may kindly be accepted. 3. That, thereafter the eligibility of the Respondent No.1 was examined in the office of the Appellant No.1 on 23.07.2018. Finally the file was sent to Law Department by Appellant No.1 on 31.08.2018 to render their views with regard to filing of FAO. The Law Department returned the file on 25.10.2018 with their views to implement the order of the learned Tribunal. 4. That, by that time since another concurrent file was sent to Finance Department through OSWAS system to Page 4 of 23 // 5 // in file was received
Facts
obtain their views with regard to implementation of the courts order, it was suggested by the law section of the department on 26.10.2018 to await the views of Finance Department in the matter and such decision was taken by the Appellant No.1 on 29.10.2018. 5. That, on 30.10.2018 the Finance Department returned the OSWAS file with their opinion to relook the suggestion rendered by the Administrative Department as Director, Higher Education had opined to challenge the impugned orders. Such the Administrative Department (office of the Appellant No.1) on 30.10.2018 and accordingly the file was received in the Administrative Branch on 14.12.2018. Thereafter, as per the views of Law Department the file was examined on 27.12.2018 and it was suggested to obtain Govt. approval for implementation of the Courts order and Govt. approval was obtained on 29.12.2018 to the extent of the implementation of the Court order. Accordingly, Govt. order was issued vide GO No.8906/HE, dtd.15.04.2019 requesting Director, Higher Education to issue post approval order in favour of the deceased Respondent. 6. That, on 16.09.2019 the Hon’ble Apex Court in their in Civil Appeal judgment dtd.16.09.2019 passed No.7295/2019 clarified that after repeal of Grant-in-aid order, 1994 it became inexistent/wiped-out and the provisions of the repealed order cannot be made operative again to grant benefit of GIA to any unapproved post/person in a non-govt aided college. 7. That, in view of the aforesaid clarification of the Hon’ble Supreme Court Appellant No.1 took decision to cancel the approval order issued in favour of deceased Respondent. Accordingly such cancellations order was issued vide letter No.2786/HE, dtd.13.01.2020. Further, judgment it was decided dtd.05.05.2018 passed in GIA Case No.199 of 2015 before the Hon’ble High Court.” impugned the by 2.5. It is also contended that similar application seeking condonation of delay of around 1011 days when was not
Legal Reasoning
condoned by this Court in FAO No.125 of 2016, the matter was carried to the Hon’ble Apex Court. Hon’ble Apex Court in Civil Appeal No.11080-81 of 2017 set aside the order passed by this court on 25.01.2017 and allowed the Appeal by condoning the delay. Not only that learned Addl. Govt. Advocate relied on the orders passed by the Hon’ble Page 5 of 23 // 6 // Apex Court on 22.11.2019 in SLP (Civil) Diary No.33245 of 2018 and similar SLPs. It is contended that in all the aforesaid three orders, Hon’ble Apex Court was pleased to condone the delay in filing the Special Leave Petition by imposing a cost of Rs.50,000/- on the State. Order passed in SLP (Civil) Diary No.33245 of 2018 and similar SLPs are reproduced hereunder:- “Delay condoned. to Subject the Petitioner-State depositing a sum of Rs.50,000/- (Rupees fifty thousand only) in the Registry of this Court within four weeks from today, issue notice, returnable on 13.01.2020, Dasti service, in addition, is permitted. If the amount is not deposited within the stipulated time, the special leave petition shall stand dismissed without further reference to the Court. Upon deposit, the amount shall be invested in a fixed deposit receipt with a nationalized bank initially for a period of 90 days with auto renewal facility. xxxx xxxx xxx xxx Diary No.33248/2018; Diary No.33650/2018; Diary No.39345/2018; Diary No.39309/2018; Diary No.39347/2018; Diary No.39352/2018 Diary NO.31098/2019; and Diary No.33665/2019 Mr. Ashok Parija, learned Senior Counsel invited out attention to the judgment and order dated 16.09.2019 passed in Civil Appeal No.7295 of 2019 and all other connected matters. The issue involved in the matter was set out in para 1 of the said judgment as under: “1. The question involved in the appeals is whether the employees are entitled to claim grant-in-aid as admissible under the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 1994 (hereinafter referred to as the ‘ the order of 1994), after its repeal in the year 2004 by virtue of provisions contained in (Non-government Coleges, Junior Colleges and Orissa Page 6 of 23 // 7 // Higher secondary Schools) Grant-in-aid Order, 2004 (hereinafter referred to as the ‘the order of 2004’). The order of 2004 has also been repealed by Orissa (Aided Colleges, Aided Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 2008.” The conclusion drawn by the Court as set out in para 31 was as under: “31. It is apparent on consideration of Paragrapha 4 of order of 2004 that only saving of the right is to receive the block grant and only in case grant in aid had been received on or before the repeal of the Order of 2004, it shall not be affected and the Order of 1994 shall continue only for that purpose and no other rights are saved. Thus, we approve the decision of the High Court in Lok Nath Behera (supra) on the aforesaid aspect for the aforesaid reasons mentioned by us.” Relying on the aforesaid observations, it is submitted that the only right that was saved was to receive the block grant and only in case the grant-in-aid was received on or before the repeal of the Order of 2004. It is further submitted that the decision of the High Court in Loknath Behera was approved by this Court. Exactly contrary situation has now been accepted by the High Court in the orders presently under appeal. We must however state that the matters were disposed of by the High Court as the petition in every case was delayed by at least 800 days. In the circumstances, we pass following order:- a) Delay condoned. to the petitioner-state depositing a sum of Subject Rs.50,000/- (Rupees fifty thousand only), to the account of every petition in the Registry of this Court within four weeks from today, let notices be issued to the respondents, returnable on 13.01.2020. Dasti service, in addition, is permitted. b) If the amount is not deposited within the stipulated time, the special leave petitions shall stand dismissed without further reference to the Court. c) Upon deposit, the amount shall be invested in a fixed deposit receipt with a nationalized bank initially for a period of 90 days with auto renewal facility. Mr. Subhasish Mohanty, learned Advocate-on-Record, who has appeared on behalf of Caveator/ Sole respondent in SLP (Civil) Diary No.31098 of 2019, accepts notice on behalf of sole respondent. He prays for and is granted three weeks’ time to put in affidavit in reply. Rejoinder, if any, be filed within two weeks’ thereafter. List all the matters on 213.01.2020”. Page 7 of 23 // 8 // 2.6. Learned State Counsel also relied on the decision rendered by the Hon’ble Apex Court on 09.10.2023 in Civil Appeal No.5867 of 2015 (Sheo Raj Singh (Deceased) Through Lrs. & Ors. vs. Union of India & Anr.) Placing reliance on the decision in Sheo Raj Singh as provided under Section-5 of the Limitation Act, it is contended that, the term sufficient cause is elastic enough for Courts to do substantial justice. Further, when substantial justice and technical considerations are pitted against one and another, the former would prevail. Since in the present case the Tribunal allowed the claim of the respondent without following the decision of this Court in the case of Laxmidhar Pati vs. State of Orissa & Others (1996) (I) OLR- 152 as well as other decisions rendered by this Court, in view of the ratio decided in the case Sheo Raj Singh and the order passed by the Hon’ble Apex Court in SLP (Civil) Diary No.33245 of 2018, 38574 of 2015 and 11604 of 2020 in condoning the delay, subject to payment of cost of Rs.50,000/- the delay in filing of the present appeal is required to be condoned as substantial question of law is involved. 2.7. Hon’ble Apex Court in Para-31(b) and 37 of the Judgment in Sheo Raj Singh has held as follows:- Page 8 of 23 // 9 // “31.b. The expression sufficient cause is elastic enough for courts to do substantial justice. Further, when substantial justice and technical considerations are pitted against one another, the former would prevail”. xxx xxx xxx 37. Having bestowed serious consideration to the rival contentions, we feel that the High Court’s decision to condone the delay on account of the first respondent’s inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a illiberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests”. 3. Mr. M.K. Pati, learned counsel appearing for the legal heirs of the deceased employee, Respondent Nos.1(a) to 1(d) on the other hand made his submission contending inter alia that even though G.I.A Case was disposed of by the Tribunal vide judgment dtd.05.05.2018, but the present appeal was only filed on 14.05.2020, with delay of around 767 days. 3.1. Learned counsel appearing for the Respondent Nos.1(a) to 1 (d) contended that the services of the deceased employee was approved by O.P. No.2 vide order dated 27.03.1998 and the deceased employee was allowed to receive Grant-in-Aid @ 1/3rd w.e.f. 01.06.1990. But subsequently when O.P. No.2 vide order dated 05.12.1998 recalled his own order so passed on 27.03.1998, the Page 9 of 23 // 10 // deceased employee challenging the same approached this Court in O.J.C No.2507 of 1999. During pendency of the matter before this Court, the concerned employee died on 09.01.2002. But this Court vide order dated 16.04.2015 transferred the matter to the Tribunal for its adjudication in terms of the provisions contained under Section 24-B of the Odisha Education Act, 1969. On being so transferred vide order dated 16.04.2015, the matter was registered as GIA Case No.199 of 2015. The Tribunal after going through the materials placed by the Respondent Nos.1 (a) to 1 (d) and the State, allowed the claim by quashing the order dated 05.12.1998 and with a direction to release the benefits as due to the deceased employee in favour of Respondent Nos.1(a) to 1(d), within a period of 6 (six) months from the date of receipt of this order. 3.2. It is contended that after receipt of the judgment so passed by the Tribunal on 05.05.2018 and after due deliberation, Govt. issued an order on dated 15.04.2019, requesting O.P. No.2 to issue Post Facto Approval in favour of the deceased employee and the Appellants decided to implement the order so passed by the Tribunal. But relying on the decisions passed by the Apex Court in the case of Anup Kumar Senapati, order passed by the Govt. on 15.04.2019 was recalled on 13.01.2020 and a decision was Page 10 of 23 // 11 // taken to challenge the judgment by filing an appeal before this Court. In terms of the decision so taken by the Government on 13.01.2020, the present Appeal was filed on 14.05.2020. 3.3. Learned counsel for the Respondent Nos.1(a) to 1(d) contended that since after due deliberation and after receipt of the opinion from the respective departments, Government issued the order on 15.04.2019 requesting Appellant No.2 to implement the order, there was no occasion to recall the order basing on the decision of the Hon’ble Apex Court so passed on 16.09.2019 vide order dated 13.01.2020 and deciding to challenge judgment with filing of the appeal, which was ultimately filed on 14.05.2020. 3.4. It is also contended that the decision in the case of Anup Kumar Senapati as cited (supra) is not applicable to the facts of the present case as the services of the deceased employee was originally approved way back on 27.03.1998 under GIA Order, 1994. The said order when was recalled vide order dated 05.12.1998, the matter was challenged before this Court in O.J.C. No.2507 of 1999 and the deceased employee during pendency of the matter before this Court died on 09.01.2002. The tribunal vide its judgment dated 05.05.2018, while quashing the order Page 11 of 23 // 12 // dated 05.12.1998, directed Appellant Nos.1 and 2 to release all the arrear dues as due to the deceased employee, who is admittedly a peon of the College, in favour of the present Respondent Nos.1 (a) to 1(d) with all consequential benefits including Family Pension. Since the services of the deceased employee was approved way back in 1998, the action of the Appellant No.1 in recalling the order dated 15.04.2019, basing on the judgment passed by this Court on 16.09.2019 in the case of Anup Kumar Senapati as cited (supra) is not legal and justified. It is also contended that once the department decided to implement the judgment after due deliberation and consultation with various departments, there was no occasion to challenge the judgment basing on a decision of the Hon’ble Apex Court, so passed on 16.09.2019. 3.5. Learned counsel appearing for Respondent Nos.1(a) to 1(d) also contended that even though Hon’ble Apex Court passed the judgment in the case of Anup Kumar Senapati as cited (supra) on 16.09.2019, but Appellant No.1 only on 13.01.2020 recalled the order dated 15.04.2019 and decided to challenge the judgment before this Court. It is accordingly contended that the decision of the Appellant No.1 to recall order dated 15.04.2019 on 13.01.2020, basing on the decision of the Hon’ble Apex Court so passed Page 12 of 23 // 13 // on 16.09.2019 is also not sustainable in the eye of law. Decision so taken to challenge the judgment without explaining the delay by assigning sufficient cause is not to be entertained. 3.6. Learned counsel appearing for the Respondent Nos. 1(a) to 1(d) also contended that the delay in filing the appeal has not been properly explained by showing sufficient cause and in view of the decision of the Hon’ble Apex Court in the case of Postmaster General & Ors. Vs. Living Media Ltd. & Anr. ((2012) 3 SCC 563) and the decision of this Court in State of Odisha & Ors. Vs. Sales Tax Officer, Cuttack II (W.P.(C) No. 15763 of 2021), the delay is not required to be condoned. 3.7. Hon’ble Apex Court in Para 27 and 29 of the Judgment in the case of Postmaster General & Ors. has held as follows:- is not “27. It in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed familiar with court with competent persons proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 29. In our view, it is the right time to inform all their agencies and the government bodies, Page 13 of 23 // 14 // that they unless instrumentalities have reasonable and acceptable explanation for the delay and 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 perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” Similarly this Court in the case of State of Odisha & Ors in Para -5 has held as follows:- “5. The Supreme Court has recently in a series of matters reiterated that the explanation usually offered by the State and its entities for the delay on account of administrative exigencies should not be accepted unless they are shown to be justified. A sampling of such orders is as under: (i) (ii) (iii) (iv) (v) Order dated 13th January 2021 in SLP No.17559 of 2020 (State of Gujarat v. Tushar Jagdish Chandra Vyas & Anr.) Order dated 22nd January 2021 in SLP No.11989 of 2020 (The Commissioner of Public Instruction & Ors. v. Shamshuddin) Order dated 22nd January 2021 in SLP (State of Uttar No.25743 of 2020 Pradesh & Ors v. Sabha Narain & Ors.) Order dated 4th February 2021 in SLP No.19846 of 2020 (Union of India v. Central Tibetan Schools Admin & Ors) Order dated 11th January 2021 in SLP No.22605 of 2020 (The State of Odisha & Ors v. Sunanda Mahakuda)” Page 14 of 23 // 15 // 3.8. Learned counsel appearing for the Respondent also relied on the decision in the case of State of Uttar Pradesh & Others vs. Sabha Narain & Others reported in (2022) 9 SCC 266 . Hon’ble Apex Court in Para-3 to 5 of the said judgment has held as follows:- : have repeatedly discouraged (2021) 1 SCC “3. We State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please, ignoring the period of if the limitation prescribed by the statutes, as Limitation statute does not apply to them. In this behalf, suffice to refer to our judgments in State of M.P. v. Bherulal [State of M.P. v. Bherulal, (2020) 10 SCC 654 : (2021) 1 SCC (Cri) 117 : (2021) 1 SCC (Civ) (L&S) 84] and State of 101 Odisha v. Sunanda of Mahakuda [State Odisha v. Sunanda Mahakuda, (2021) 11 SCC 560 : (2022) 1 SCC (Cri) 300 : (2022) 2 SCC (L&S) 393] . The leeway which was given to the Government/public authorities on account of innate inefficiencies was the result of certain orders of this Court which came at a time when technology had not advanced and thus, greater indulgence was shown. This position is no more prevalent and the current legal position has been elucidated by the judgment of this Court in Postmaster General v. Living Media Ltd. [Postmaster General v. Living Media India Ltd., (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649] Despite this, there seems to be little change in the approach of the Government and public authorities. 4. We have also categorised such kind of cases as “certificate cases” filed with the only object to obtain a quietus from the Supreme Court on the ground that nothing could be done because the highest Court has dismissed the appeal. The objective is to complete a mere formality and save the skin of the officers who may be in default in following the due process or may have done it deliberately. We have deprecated such practice and process and we do so again. We refuse to grant such certificates and if the Government/public authorities suffer losses, it is time when officers the for concerned the same, bear responsible India Page 15 of 23 // 16 // consequences. The irony, emphasised by us repeatedly, is that no action is ever taken against the officers and if the Court pushes it, some mild warning is all that happens. 5. Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate the petitioner(s) of Rs 25,000 for wastage of judicial time which has its own value and the same be deposited with the Supreme Court Advocates-on-Record Welfare Fund within four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the same period of time”. impose costs on to 3.9. Learned counsel for the Respondent also relied on another decision of the Hon’ble Apex Court in the case of State of Kerala vs. Akshaya Jewellers reported in 2023 SCC OnLine SC 1437. Hon’ble Apex Court in Para-4 & 5 of the said order has held as follows:- “4. We have considered the rival contentions of the parties. At the outset, we find that delay of 390 days in filing the Special Leave Petition, now converted into Civil Appeal, has not been explained to the satisfaction of this Court, inasmuch as there is no narration as to what happened between 18.02.2019, the date on which the impugned order was passed till 25.04.2019. Thereafter the only explanation given is that the file had got mixed up with some other files and, therefore, ultimately only on 13.01.2021, the same was noticed and steps were taken to send a letter to the Office of the Advocate General of the State of Kerala and a copy to the Special Govt. Pleader (Taxes) and thereafter, steps were taken to file the appeal on 22.07.2021. 5. We find that the reason cited for the gross delay of 390 days in filing the Special Leave Petition, now converted into a Civil Appeal, does not pursuade us to condone the delay. The explanation offered is not satisfactory and not sufficient in the eye of law to condone the delay”. Page 16 of 23 // 17 // 3.10. Learned counsel for the Respondent also relied on the decision reported in (2020) 13 SCC 745, Hon’ble Apex Court in Para-19 to 24 and 31 has held as follows:- “19. Though we have exhaustively referred to the pleadings and the contentions of the parties, including contentions put forth on merits, the same is only for completeness and to put the matter in perspective before considering the issue relating to delay and laches. In the instant case, considering that the Division Bench [University of Delhi v. Union of India, 2018 SCC OnLine Del 12085] of the High Court has dismissed the LPA on the ground of delay of 916 days, that aspect of the matter would require consideration at the outset and the facts on merits are noted to the limited extent to find out whether in that background the public interest would suffer. 20. The learned Senior Counsel for the appellant in order to impress upon this Court the principle relating to consideration of “sufficient cause” for condonation of delay and the factors that are required to be kept in decision view, in LAO v. Katiji [LAO v. Katiji, (1987) 2 SCC 107] wherein it is held as hereunder : (SCC pp. 108-09, para 3) relied has the on “3. The legislature has conferred the power to condone delay by enacting Section 5 [ Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] of the Limitation Act, 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on “merits”. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice—that the for being institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that: the existence of life-purpose the Page 17 of 23 // 18 // 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. “Every day's delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. justice and 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because is capable of removing injustice and is expected to do so. it from is no warrant justice-oriented approach Making a this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the “State” which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There for according a step-motherly treatment when the “State” is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology file- pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-nongrata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression “sufficient cause”. So the note-making, imbued with Page 18 of 23 // 19 // also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal reasonable on merits after affording opportunity of hearing to both the sides.” (emphasis in original) 21. Further the decision in Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598] is relied upon, wherein this Court has indicated the real test to determine the delay is that the petitioner should come to Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. 22. The learned Senior Counsel for Respondent 13, on the decision the other hand, has relied upon in Postmaster (India) Ltd. [Postmaster General v. Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649] wherein it is held as hereunder : (SCC p. 574, paras 28-29) General v. Living Media “28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation the undoubtedly Government. everybody, including binds their bodies, agencies 29. In our view, it is the right time to inform all the and government instrumentalities that unless they have reasonable and acceptable explanation for the delay and 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 Page 19 of 23 // 20 // In the in perspective. that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 23. From a consideration of the view taken by this Court through the decisions cited supra the position is clear that, by and large, a liberal approach is to be taken in the matter of condonation of delay. The consideration for condonation of delay would not depend on the status of the party, namely, the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even-handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be that background while kept considering condonation of delay, routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the courts based on the fact situation. In Katiji [LAO v. Katiji, (1987) 2 SCC 107] the entire conspectus relating to condonation of delay has been kept in focus. However, is that the what cannot also be consideration therein was in the background of dismissal of the application seeking condonation of delay in a case where there was delay of four days pitted against the consideration that was required to be made on merits regarding the upward revision of compensation amounting to 800%. 24. As against the same, the delay in the instant facts in filing the LPA is 916 days and as such the consideration to condone can be made only if there is reasonable explanation and the condonation cannot be merely because the appellant is public body. The entire explanation noticed above, depicts the casual approach unmindful of the law of limitation despite being aware of the position of law. That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal. In addition in the instant facts not only the delay and laches in filing the appeal is contended on behalf of the respondents seeking dismissal of the instant appeal but it is also contended that there was delay and laches in filing the writ petition itself at the first instance from which lost sight of Page 20 of 23 // 21 // the present appeal had arisen. In that view, it would be necessary for us to advert to those aspects of the matter and notice the nature of consideration made in the writ petition as well as the LPA to arrive at a conclusion as to whether the High Court was justified. xxx xxx xxx 31. In the matter of condonation of delay and laches, the well-accepted position is also that the accrued right of the opposite party cannot be lightly dealt with. In that regard, rather than taking note of the hardship that would be caused to Respondent 13 as contended by the learned Senior Counsel, what is necessary to be taken note of is the manner in which Respondent 11, DMRC has proceeded in the matter. Respondent 11, DMRC is engaged in providing the public transport and for the said purpose the Government through policy decision has granted approval to generate resources through property development and in that regard the development as earlier indicated, is taken up. Pursuant thereto Respondent 11 has received a sum of Rs 218.20 crores from Respondent 13 as far back as in the year 2008. The said amount as indicated is used for its projects providing metro rail service to the commuting public. In such circumstance, if at this stage the inordinate delay is condoned unmindful of the lackadaisical manner in which the appellant has proceeded in the matter, it would also be contrary to public interest”. 3.11. Similarly reliance was placed in the decision in Civil Appeal No.4440/2008 (Arising out of SLP (C) No.6111 of 2006, Perumon Bhagvathy Devaswom, Perinadu Village vs. Bhargavi Amma (Dead) by Lrs. & Ors. 3.12. Placing reliance on the stand taken by the Respondent Nos.1(a) to 1(d) and the decisions so relied on, learned counsel for the Respondent Nos.1(a) to 1(d) contended that in view of the peculiar facts and Page 21 of 23 // 22 // circumstances of this case, the delay in filing the appeal is not required to be condoned. 4. Having heard learned counsel for the Parties and after going through the materials placed before this Court, this Court finds that the services of the deceased employee was initially approved by the Director-Appellant No.2 on 27.03.1998 by allowing the benefit of Grant-in-Aid under GIA Order, 1994 w.e.f. 01.06.1990. The same order when was recalled vide order dated 05.12.1998, the matter was challenged before this Court in O.J.C. No.2507 of 1999. During pendency of the matter before this Court, the employee concerned died on 09.01.2002 and the matter thereafter vide order dated 16.04.2015 was transferred to the Tribunal for its adjudication. The Tribunal vide judgment dated 05.05.2018 allowed the claim by quashing the order dated 05.12.1998. 4.1. As found from the record, the appellants after due deliberation decided to implement the judgment and ultimately issued the order on dated 15.04.2019. But relying on the decision of the Hon’ble Apex Court in the case of Anup Kumar Senapati so passed on 16.09.2019, Appellant No.1 again passed an order on 13.01.2020 with a decision to challenge the judgment. Considering the fact that the department decided to implement the judgment on Page 22 of 23 // 23 // 15.04.2019, as per the considered view of this Court, there was no occasion to recall the same vide order dated 13.01.2020, basing on the decision in the case of Anup Kumar Senapati as cited (supra). Not only that the delay for the period from 05.05.2018 to 14.05.2020 has also not been explained by assigning sufficient cause. 5. In view of the same and placing reliance on the decisions so cited by the learned counsel appearing for Respondent Nos.1(a) to 1(d), this Court is not inclined to condone the delay in filing the appeal. Accordingly the I.A. stands dismissed. (Biraja Prasanna Satapathy) Judge FAO No.507 of 2020 1. Since this Court is not inclined to condone the delay in filing the appeal, the appeal is accordingly dismissed. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 20th of February, 2024/Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 21-Feb-2024 18:14:17 Page 23 of 23