In a recent judgment of the Supreme Court in the case of “S.Ganeshraju (Dead)
through Lrs and another vs Narasamma (Dead) through Lrs and ors
reported in (2013) 11 Supreme Court Cases 341” the Supreme Court in
dealing with an issue of condoning delay as falling under section 5 of the
Limitation Act has held that section 5 of the Limitation Act is required to be
given a liberal construction so as to advance substantial justice. Unless
there are malafides in not approaching the Court during the period of
limitation as a normal rule delay ought to be condoned.
The Supreme
Court has observed as follows:-
12. “The expression “sufficient cause” as appearing in Section
5 of the Limitation Act, 1963 has to be given a liberal
construction so as to advance substantial justice. Unless the
respondents are able to show malafides in not approaching the
court within the period of limitation, generally as a normal rule,
delay should be condoned. The trend of the courts while dealing
with the matter with regard to condonation of delay has tilted
more towards condoning delay and directing the parties to
contest the matter on merits, meaning thereby that such
technicalities have been given a go-by.
13.
The rules of limitation are not meant to destroy or
foreclose the right of parties. They are meant to see that parties
do not resort to dilatory tactics but seek their remedy promptly.
14. We are aware of the fact that refusal to condone delay
would result in foreclosing the suitor from putting forth his
cause. There is no presumption that delay in approaching the
court is always deliberate. In fact, it is always just, fair and
appropriate that matters should be heard on merits rather than
shutting the doors of justice at the threshold. Since sufficient
cause has not been defined thus, the courts are left to exercise a
discretion to come to the conclusion whether circumstances exist
establishing sufficient cause. The only guiding principle to be
seen is whether a party has acted with reasonable diligence and
had not been negligent and callous in the prosecution of the
matter. In the instant case, we find that the appellants have shown
sufficient cause seeking condonation of delay and the same has
been explained satisfactorily.”
In another decision of the Supreme Court in the case of
15.
“Basavraj & Anr. vs. SLAO” reported in “(2013) 14 SCC 81” while explaining
what would be meant by the word 'sufficient cause' the Supreme Court has
made the following observations in considering the case of delay of more
than five years.
9. “ Sufficient cause is the cause for which defendant
could not be blamed for his absence. The meaning of the
word "sufficient" is "adequate" or "enough", inasmuch as
may be necessary to answer the purpose intended.
Therefore, the word "sufficient" embraces no more than that
which provides a platitude, which when the act done suffices
to accomplish the purpose intended in the facts and
circumstances existing in a case, duly examined from the
view point of a reasonable standard of a cautious man. In
this context, "sufficient cause" means that the party should
not have acted in a negligent manner or there was a want of
bona fide on its part in view of the facts and circumstances
of a case or it cannot be alleged that the party has "not acted
diligently" or "remained inactive". However, the facts and
circumstances of each case must afford sufficient ground to
enable the Court concerned to exercise discretion for the
reason that whenever the Court exercises discretion, it has to
be exercised judiciously. The applicant must satisfy the
Court that he was prevented by any sufficient cause from
prosecuting his case, and unless a satisfactory explanation is
furnished, the Court should not allow the application for
condonation of delay. The court has to examine whether the
mistake is bona fide or was merely a device to cover an
ulterior purpose. (See: Manindra Land and Building
Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964
SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC
1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and
Maniben Devraj Shah v. Municipal Corporation of Brihan
Mumbai AIR 2012 SC 1629.) In Arjun Singh v. Mohindra
Kumar, AIR 1964 SC 993 this Court explained the
difference between a good cause and a sufficient cause and
observed that every sufficient cause is a good cause and vice
versa. However, if any difference exists it can only be that
the requirement of good cause is complied with on a lesser
degree of proof that that of sufficient cause.”
16.
The principles of law laid down by the Supreme Court in the case of
“Collector, Land Acquisition, Anantnag and Anr. Vs. Mst.Katiji and Ors. (AIR
1987 Supreme Court 1353)” as appearing in paragraph 3 of its judgment are
required to be considered in considering an application for condonation of delay.
The Supreme Court has observed as under:-
“3.
The legislature has conferred the power to condone
delay by enacting section 5 of the Indian Limitation Act of
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 being the
life purpose for the existence of the 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 realized
that:-
(1)
Ordinarily a litigant does not stand to benefit by
lodging an appeal late;
(2)
Refusing to condone delay can result in meritorious
matter being thrown out at the very threshold and cause of
As against this, when delay is
justice being defeated.
condoned the highest that can happen is that cause would be
decided on merits after hearing the parties.
“Every day's delay must be explained” does not mean
(3)
that a pedantic approach should be made. Why not every
hours delay, every seconds delay ? The doctrine must be
applied in a rational common sense in pragmatic manner.
(4)
When substantial justice and 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.
(5)
There was no presumption that delay is occasioned
deliberately, or on account of culpable negligence, or on
account of malafides. A litigant does not stand to benefit by
resorting to delay in fact he runs a serious risk.
(6)
It must be grasp that judiciary is respected not on
account of its power to legalize injustice on technical
grounds but because it is capable of removing injustice and
is expected to do so.”
17.
In the light of the aforesaid well settled position in law, it is clear
that the expression “sufficient cause” as appearing in Section 5 of the Limitation
Act is required to be a given liberal construction so as to advance substantial
justice. Unless a party contesting the condonation of delay application is able to
show malafides on the part of the party approaching the Court in seeking
condonation of delay, it is held that as a normal rule, the delay should be
condoned. The Court is under an obligation to exercise discretion judiciously and
The reliance placed on behalf of the Petitioners on various decision
18.
hence, the test of bonafides of the applicant is required to be applied.
may not assist the Petitioners inasmuch as in each of these decisions the Court in
the peculiar facts of the case before it has adopted the reasoning as given in the
respective decisions.
WRIT PETITION NO.975 OF 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
M/s.Ware's Educational Trust Vs Subhash Bhagwan Khedkar,
CORAM ;
: G. S. KULKARNI, J.
DATE : 17th SEPTEMBER,2014
Citation;2015(2)ALLMR91
Rule returnable forthwith. Respondents waive service. By consent
of the learned Counsel for the parties and at their request taken up for final
hearing.
By this petition under Article 227 of the Constitution of India, the
2.
Petitioners challenge an order dated 21.12.2012 passed by the learned Presiding
Officer, School Tribunal, Mumbai (for short “the Tribunal”). By the impugned
order, the Tribunal has allowed the application preferred by Respondent No.1 for
condonation of delay of three years and eight months in filing an appeal under
Section 9(1) of the Maharashtra Employees of Private Schools (conditions of
service) Regulation Act,1977, against the oral termination dated 2.4.2007.
3.
The Petitioner no.1 is a Trust conducting the Petitioner no.2 High
School, a Marathi Medium Secondary School. Respondent no.1 was appointed as
an Assistant Teacher in the Petitioner no.2 school. It is the case of Respondent
no.1 in the delay condonation application that on 2.4.2007 he was orally informed
through a peon of the Petitioners that he was terminated from the services of the
Petitioner no.2 School. That on 3.4.2007 when Respondent no.1 went to attend
the duties, he was restrained by Mr.Anil Ware son of Tulshiram Ware, the
President of the Petitioner no.1, from doing so on the ground that he was
terminated from service. It was the case of Respondent no.1 that Mr.Anil Ware
had threatened him of police power as also was beaten up with the help of some
persons and threatened of dire consequences. Respondent no.1 somehow escaped
and rushed to Dindoshi Police Station to lodge a complaint against Mr.Anil Ware
and others, however, the police officers refused to lodge a complaint as they had a
departmental connection with Mr.Anil Ware and his Father Mr.Tulshiram Ware
who was a retired Assistant Police Inspector from Mumbai Police Department. It
was the case of the Respondent no.1 that he has no alternative but to leave the city
of Mumbai and return to his native place at Ahmednagar. Respondent no.1 had
averred that his father was not keeping well and therefore, he had not informed his
father about the termination and the incident that had taken place, but informed
that he was on summer vacation. However, on the insistence of the members of
the family in October,2007 he narrated the incident. The Respondent no.1's father
who was not keeping well was required to be hospitalised for a period of two and
half months
between October,2007 to December,2007 for the ailment of
hypertension and chest pain, due to shock suffered by him. The Respondent no.1
stated that he was financially weak and got his father discharged from the hospital
but he was advised by the Doctor to visit the hospital on regular basis for
necessary check ups. The medical papers pertaining to his father's treatment were
placed on record of the Tribunal. The Respondent no.1 stated that he being the
only male member was required to do all work outside the house, to take his
father to the hospital and to look after all household affairs and therefore, could
not leave Ahmadnagar to come to Mumbai and take steps to file appeal against the
oral termination. As his father was bed-ridden and helpless and as there was
nobody to look after the farming work, he was required to look after the
cultivation which was the only source of livelihood for himself and his parents.
It was his case that after the crops were out, he decided to approach some
Advocate to take legal advice. In the month of October,2008 he was required to
hospitalise his mother for fracture of spine and multiple osteoporosis for one
month and thereafter, she was also required to visit hospital regularly for traction
treatment for fracture of spine. The medical papers were placed on record before
the Tribunal. It was his case that he had spent all his savings and earnings on the
treatment of his parents and did not have sufficient money to fulfill family's basic
needs and other necessities. For this reason and to avoid litigation somehow in
April-May,2009 he visited Mr.Kapil Patil, Member of the Legislative Council
(MLC), requesting him to resolve the issue of his termination. The MLC assured
him to take up the issue with the Petitioners and seek his reinstatement in the
Petitioner no.2 – school.
The Respondent no.1 believed the MLC and therefore,
being hopeful did not apply for any other job.
However, despite repeated
inquiries with the office of the MLC, it emerged that the assurances of the MLC
were of no consequence.
Therefore in January,2010 Respondent no.1 decided to
approach an Advocate so as to adopt legal proceedings. Accordingly, he visited
the office of some Advocates, however, he was not in a financial position to afford
their legal fees and hence, lost hope of a reinstatement. He was frustrated as he
was not having any source of income. Further his wife became unwell on account
of critical pregnancy and that there were chances of danger to the infant and
hence, this time he was required to look after his wife personally and take intense
care of his wife and baby in her womb, and therefore, could not take further steps
in regard to his illegal termination. The medical papers of his wife's illness were
The medical papers
'broncophneumonia' and was required to be hospitalised.
placed on record. The child born to the Respondent no.1 was diagnosed with
pertaining to his wife were also placed on record before the Tribunal. It is his case
that after coming out of this traumatic situation, he contacted an Advocate in
January,2011 and filed an appeal in the month of January,2011, alongwith the
delay condonation application on 22.2.2011.
The Petitioners appeared before the School Tribunal and denied the
4.
contents of the delay condonation application. It was the Petitioner's case that
Respondent no.1 had failed to show sufficient cause in seeking condonation of
delay to file the appeal. The Petitioners also disputed the contents of the doctor's
certificates issued to the father of Respondent no.1 to say that he was not
hospitalised and that the medical papers do not show hospitalisation but only
show treatment for the period from October,2007 to December,2007.
The
Petitioners also denied the certificates of medical treatment in respect of the
treatment of Respondent no.1's mother and his wife. The Petitioners' case is that
the entire story as pleaded in the delay condonation application is false and
concocted and that no sufficient cause was shown by Respondent no.1 after
alleged date of termination i.e. 2.4.2007 till 22.2.2011.
5.
The learned Presiding Officer of the School Tribunal after taking
into consideration the facts as placed on record of the delay condonation
application, observed that the ailments of the father, mother and wife and child
were substantiated by the medical papers on record and on account of these
compelling circumstances, Respondent no.1 was prevented from approaching the
Tribunal. It is observed that not only on account of these reasons but also on
account of financial difficulties, the Respondent no.1 tried to resolve the issue by
approaching the MLC and only when the assurances of the MLC became fruitless,
he contacted an Advocate so as to approach the Tribunal. The learned Presiding
Officer has accepted the reasons as set out by the Respondent no.1 to hold the
same as sufficient cause to condone the delay and by the impugned order has
condoned the delay in preferring the appeal.
6.
On behalf of the Petitioners, it is submitted that the learned
Presiding Officer is in error in allowing the delay condonation application. It is
submitted that the delay has not been specifically explained and that it can be very
well seen that for certain period there is no explanation. It is submitted that apart
from the explanation which is given in respect of the various ailments of
Respondent no.1's father, mother, wife and son, as also the time consumed by
Respondent no.1 in approaching the MLC, Respondent no.1 ought to have
explained the delay with appropriate accuracy and explanation ought to have been
given for the entire period, and on failure of Respondent no.1. Learned Counsel
for the Petitioners submitted that for certain period there was no explanation
forthcoming from Respondent no.1 and hence, the Tribunal ought not to have
condoned the delay. In support of his submissions, the learned Counsel for the
Petitioners have relied upon the following decisions:-
(i) 1999(1) All MR
63, (Bipin H.Doshi Vs. Jawaharlal Prajapati & Ors.); (ii) (1997)7 Supreme Court
Cases 556, (P.K.Ramchandran Vs. State of Kerala & Ors.);
(iii) 2005(2)
Bom.C.R. 706, (Prabhavati Bhaurao Bhivgade Vs. New Grand Education Society
Smt.Nayan N.Teli & Ors.); (v)
& Ors.); (iv) 1999(4) All MR 57, (Mahavira Trading Company & Ors. Vs.
1997(1) All MR 149, (Mathuradas Mohota
College of Science, Nagpur Vs. R.T.Borkar & Ors.); (vi) 2012(3) All MR 450
(SC), (Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai); (vii)
Lanka Venkateshwarlu (D) by LRs Vs. State of A.P. & Ors., ((2011) 4 SCC 363).
On behalf of Respondent no.1, it is contended that the learned
7.
Presiding Officer of the School Tribunal has rightly appreciated the facts placed
on record and on being satisfied that Respondent no.1 had shown sufficient cause
as supported by documents, the learned Presiding Officer on appropriate
examination of the facts has condoned the delay.
It is submitted that the
contentions as raised on behalf of the Petitioners in opposing the delay
condonation application and the allegations as made by the Petitioners were not
substantiated. It is submitted that the reasons as placed on record on behalf of
Respondent no.1 were bonafide. It is submitted that the explanation urged by the
Respondent no.1 did not show any malafides or any deliberate attempt on his part
to delay the legal proceedings to approach the tribunal. It is submitted that the
grounds which are given are reasonable, bonafide and that no contrary material is
produced on record to show that the trauma and the sufferings as caused to the
Respondent no.1 because of ill health was false. In support of his submissions,
the learned Counsel for Respondent no.1 has relied on the decisions of this Court
in the case of (i) “Ashok Maheshkar Vs. Gangadhar Phadnavis and others”
reported in (2013(2) Mh.L.J. 497); (ii) “Vasanti Narayan Naik & Ors. Vs. Guru
14.
Shirodkar & Ors., (2013(2) Mh.L.J. 774)”.
Having considering the rival submissions of the parties what is
required to be seen is whether the Respondent no.1 had approached the School
Tribunal with sufficient cause so as to seek the relief of condonation of delay in
approaching the Tribunal to prefer an appeal against the termination of his service
on 2.4.2007. Section 9(2) of the Maharashtra Employees of Private Schools
(conditions of service) Regulation Act,1977 prescribes that an employee shall file
an appeal within a period of 30 days from the date of the receipt by him an order
of dismissal, removal, or otherwise termination of service or reduction in service.
In a recent judgment of the Supreme Court in the case of “S.Ganeshraju (Dead)
through Lrs and another vs Narasamma (Dead) through Lrs and ors
reported in (2013) 11 Supreme Court Cases 341” the Supreme Court in
dealing with an issue of condoning delay as falling under section 5 of the
Limitation Act has held that section 5 of the Limitation Act is required to be
given a liberal construction so as to advance substantial justice. Unless
there are malafides in not approaching the Court during the period of
limitation as a normal rule delay ought to be condoned.
The Supreme
Court has observed as follows:-
12. “The expression “sufficient cause” as appearing in Section
5 of the Limitation Act, 1963 has to be given a liberal
construction so as to advance substantial justice. Unless the
respondents are able to show malafides in not approaching the
court within the period of limitation, generally as a normal rule,
delay should be condoned. The trend of the courts while dealing
with the matter with regard to condonation of delay has tilted
more towards condoning delay and directing the parties to
contest the matter on merits, meaning thereby that such
technicalities have been given a go-by.
13.
The rules of limitation are not meant to destroy or
foreclose the right of parties. They are meant to see that parties
do not resort to dilatory tactics but seek their remedy promptly.
14. We are aware of the fact that refusal to condone delay
would result in foreclosing the suitor from putting forth his
cause. There is no presumption that delay in approaching the
court is always deliberate. In fact, it is always just, fair and
appropriate that matters should be heard on merits rather than
shutting the doors of justice at the threshold. Since sufficient
cause has not been defined thus, the courts are left to exercise a
discretion to come to the conclusion whether circumstances exist
establishing sufficient cause. The only guiding principle to be
seen is whether a party has acted with reasonable diligence and
had not been negligent and callous in the prosecution of the
matter. In the instant case, we find that the appellants have shown
sufficient cause seeking condonation of delay and the same has
been explained satisfactorily.”
In another decision of the Supreme Court in the case of
15.
“Basavraj & Anr. vs. SLAO” reported in “(2013) 14 SCC 81” while explaining
what would be meant by the word 'sufficient cause' the Supreme Court has
made the following observations in considering the case of delay of more
than five years.
9. “ Sufficient cause is the cause for which defendant
could not be blamed for his absence. The meaning of the
word "sufficient" is "adequate" or "enough", inasmuch as
may be necessary to answer the purpose intended.
Therefore, the word "sufficient" embraces no more than that
which provides a platitude, which when the act done suffices
to accomplish the purpose intended in the facts and
circumstances existing in a case, duly examined from the
view point of a reasonable standard of a cautious man. In
this context, "sufficient cause" means that the party should
not have acted in a negligent manner or there was a want of
bona fide on its part in view of the facts and circumstances
of a case or it cannot be alleged that the party has "not acted
diligently" or "remained inactive". However, the facts and
circumstances of each case must afford sufficient ground to
enable the Court concerned to exercise discretion for the
reason that whenever the Court exercises discretion, it has to
be exercised judiciously. The applicant must satisfy the
Court that he was prevented by any sufficient cause from
prosecuting his case, and unless a satisfactory explanation is
furnished, the Court should not allow the application for
condonation of delay. The court has to examine whether the
mistake is bona fide or was merely a device to cover an
ulterior purpose. (See: Manindra Land and Building
Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964
SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC
1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and
Maniben Devraj Shah v. Municipal Corporation of Brihan
Mumbai AIR 2012 SC 1629.) In Arjun Singh v. Mohindra
Kumar, AIR 1964 SC 993 this Court explained the
difference between a good cause and a sufficient cause and
observed that every sufficient cause is a good cause and vice
versa. However, if any difference exists it can only be that
the requirement of good cause is complied with on a lesser
degree of proof that that of sufficient cause.”
16.
The principles of law laid down by the Supreme Court in the case of
“Collector, Land Acquisition, Anantnag and Anr. Vs. Mst.Katiji and Ors. (AIR
1987 Supreme Court 1353)” as appearing in paragraph 3 of its judgment are
required to be considered in considering an application for condonation of delay.
The Supreme Court has observed as under:-
“3.
The legislature has conferred the power to condone
delay by enacting section 5 of the Indian Limitation Act of
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 being the
life purpose for the existence of the 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 realized
that:-
(1)
Ordinarily a litigant does not stand to benefit by
lodging an appeal late;
(2)
Refusing to condone delay can result in meritorious
matter being thrown out at the very threshold and cause of
As against this, when delay is
justice being defeated.
condoned the highest that can happen is that cause would be
decided on merits after hearing the parties.
“Every day's delay must be explained” does not mean
(3)
that a pedantic approach should be made. Why not every
hours delay, every seconds delay ? The doctrine must be
applied in a rational common sense in pragmatic manner.
(4)
When substantial justice and 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.
(5)
There was no presumption that delay is occasioned
deliberately, or on account of culpable negligence, or on
account of malafides. A litigant does not stand to benefit by
resorting to delay in fact he runs a serious risk.
(6)
It must be grasp that judiciary is respected not on
account of its power to legalize injustice on technical
grounds but because it is capable of removing injustice and
is expected to do so.”
17.
In the light of the aforesaid well settled position in law, it is clear
that the expression “sufficient cause” as appearing in Section 5 of the Limitation
Act is required to be a given liberal construction so as to advance substantial
justice. Unless a party contesting the condonation of delay application is able to
show malafides on the part of the party approaching the Court in seeking
condonation of delay, it is held that as a normal rule, the delay should be
condoned. The Court is under an obligation to exercise discretion judiciously and
The reliance placed on behalf of the Petitioners on various decision
18.
hence, the test of bonafides of the applicant is required to be applied.
may not assist the Petitioners inasmuch as in each of these decisions the Court in
the peculiar facts of the case before it has adopted the reasoning as given in the
respective decisions. The principal reliance on behalf of the Petitioners is on the
decision of the Supreme Court in the case of “Londhe Prakash Bhagwan Vs.
Dattatraya Eknath Mane & Ors., (2013(6) ALL MR 425 (S.C.))”, This case was
arising from an order of supersession. In the facts of the said case, the Respondent
no.1 had approached the school tribunal after a period of 9 years and 11 months to
challenge the appointment of the appellant as a Headmaster of the school. An
application for condonation of delay was filed before the school tribunal which
was dismissed by the school tribunal. The school tribunal had recorded a finding
that Respondent no.1 had in fact voluntarily resigned from the post of In-charge
Headmaster in 9.8.1995. The resignation was duly accepted by the management
and thereafter, after following due procedure the post of headmaster was filled up
on 14.8.1996. It was observed by the Tribunal that Respondent no.1 who had
alleged supersession was himself a party to a meeting of the managing committee
which approved the appointment of the appellant whose appointed was challenged
Admittedly, Respondent no.1 had not
fact was known to Respondent no.1.
by Respondent no.1. Further more the appellant was working since then and this
applied before the appropriate authority for appropriate remedy save and except
he filed a representation and hence, taking into consideration these facts the
School Tribunal has refused to condone the delay and dismissed the appeal. The
High Court in entertaining the challenge against that order had initially rejected
the writ petition and had held that the order of the school tribunal in rejecting the
delay condonation application was correct.
However, the Respondent no.1
(petitioner therein) had filed a review petition and in the review petition the High
Court had allowed the writ petition while holding that the provisions of the
Limitation Act do not apply to the appeal filed under Section 9(1)(b) of the MEPS
Act. It is in this context it was held that the delay of 9 years and 11 months was
nothing but an inordinate delay to pursue a remedy by a person who had not
submitted any cogent reason and in such cases the Court should not condone the
delay. The facts of this decision in no manner can be made applicable for the
instant case. In the present case there is no material to show that Respondent no.1
had accepted the termination. The reliance of the Petitioners on this decision of
the Supreme Court is of no avail.
19.
In adverting to the settled principle of law as laid down by the
Supreme Court in the decisions of “ S.Ganeshraju (Dead) through Lrs and
another vs Narasamma (Dead) through Lrs and ors.” (supra), “Londhe
Prakash Bhagwan Vs. Dattatraya Eknath Mane & Ors.”(supra) and “Collector,
Land Acquisition, Anantnag and Anr. Vs. Mst.Katiji and Ors.” (supra), and on
examining the facts of the present case, it is clear that there are no malafides on
the part of Respondent no.1 in approaching the School Tribunal. Further the
explanation of Respondent no.1 requiring to attend to the medical needs of his
aged parents, the ill health of his wife and son also cannot be said to be lacking
bonafides. It also cannot be forgotten that the Petitioners have not brought any
contrary material on record to show that all these reasons as also the documents as
presented by the Respondent no.1 to show the ill health and the medical
treatments, were false. The fact that Respondent no.1 was required to look after
the agriculture which was the only source of livelihood as his father was unable
to undertake cultivation on account of his ill health cannot be said to be a false
ground in the absence of any contrary material. The Respondent no.1 also tried to
avoid litigation and approached Mr.Kapil Patil, who was a MLC to explore the
possibility of the issue being resolved. However, the same did not fetch any result
and at last overcoming his financial difficulties he approached the Advocate and
presented the appeal alongwith the delay condonation application. All these
reasons cannot by any stretch of imagination can be said to be malafide or a gross
negligence on the part of the Respondent no.1 in approaching the School Tribunal
so as to prevent the Respondent no.1 from asserting his legal rights against the
termination of his service.
20.
A perusal of the impugned judgment clearly shows that the Tribunal
has appropriately taken into consideration the facts as placed on record by the
parties in recording a finding of fact that the delay condonation application as
It is a settled principle of law that the jurisdiction of this Court under
21.
preferred by the Respondent no.1 deserves to be allowed.
Articles 226 and 227 of the Constitution to issue a writ of certiorari in considering
a challenge to the decision by a Tribunal is limited. This jurisdiction is not in the
nature of an appellate power so as to enable this Court to substitute its own view
on the appreciation of evidence. In this context it is necessary to refer to the
observations of the Constitution Bench of the Supreme Court in the case of
“Sayed Yakoob Vs. K.S.Radhakrishnan and others, (AIR 1964 Supreme
Court 477)” . Speaking for the Court Gajendragadkar, J. observed as under:-
“7.
The question about the limits of the jurisdiction
of High Courts in issuing a writ of certiorari under Art. 226
has been frequently considered by this Court and the true
legal position in that behalf is no longer in doubt. A writ of
certiorari can be issued for correcting errors of jurisdiction
committed by inferior courts or tribunals, these are the cases
where orders are passed by inferior courts or tribunals
without jurisdiction, or is in excess of it, or as a result of
failure to exercise jurisdiction.
A writ can similarly be
issued wherein exercise of jurisdiction conferred on it, the
Court or Tribunal acts illegally or improperly, as for
instance, it decides a question without giving an opportunity
to be heard to the party affected by the order, or where the
procedure adopted in dealing with the dispute is opposed to
principles of natural justice. There is, however, no doubt
that the jurisdiction to issue a writ of certiorari is a
supervisory jurisdiction and the Court exercising it is not
entitled to act as an appellate Court.
This limitation
necessarily means that findings of fact reached by the
inferior Court or Tribunal as result of the appreciation of
evidence cannot be reopened or questioned in writ
proceedings. An error of law which is apparent on the fact
of the record can be corrected by a writ, but not an error of
fact, however grave it may appear to be. In regard to a
finding of fact recorded by the Tribunal, a writ of certiorari
can be issued if it is shown that in recording the said finding,
the Tribunal had erroneously refused to admit admissible
and material evidence, or had erroneously admitted
inadmissible evidence which has influenced the impugned
Similarly, if a finding of fact is based on no
finding.
evidence, that would be regarded as an error of law which
can be corrected by a writ of certiorari. In dealing with this
category of cases, however, we must always bear in mind
that a finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on the
ground that the relevant and material evidence adduced
before the Tribunal was insufficient or inadequate to sustain
the impugned finding. The adequacy or sufficiency of
evidence led on a point and the inference of fact to be drawn
from the said finding are within the exclusive jurisdiction of
the Tribunal, and the said points cannot be agitated before a
writ Court. It is within these limits that the jurisdiction
conferred on the High Courts under Art.226 to issue a writ
of certiorari can be legitimately exercised (vide Hari Vishnu
Kamath V. Ahmad Ishaque, 1955-1 SCR 1104: ((S) AIR
1955 SC 233); Nagendra Nath Vs. Commr. Of Hills
Division, 1958 SCR 1240: (AIR 1958 SC 398) and
Kaushalya Devi Vs. Bachittar Singh, AIR 1960 SC 1168.”
(emphasis supplied)
In the light of the aforesaid observations, I do not find that there is
22.
any perversity or illegality in the findings as recorded by the Tribunal so as to call
for interference of this Court in its jurisdiction under Article 226 and 227 of the
Constitution of India.
Writ petition is devoid of merits and is accordingly
rejected. Parties to bear their own costs.
(G. S. KULKARNI, J.)
At this stage, learned counsel for the petitioners prays for continuation of
the ad interim reliefs granted by an order dated 12.2.2013 for a period of eight
weeks. Learned counsel for the respondent no.1 has opposed this prayer. As the
ad interim relief was operating for quite some time, the same is continued for a
(G.S.Kulkarni, J)
period of six weeks.
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