Delhi Energy Development Agency v. Harj Chand & Ors.

1. Aggrieved by the order dated;08,08;^^ by a learned Single Judge by which the apphcation seeking restdration ofthe writ petition was dismissed on the ground ofdelay ofalmost26 months hasled to the filing of the present appeal. Along with the appeal an application has been filed seeking condonation of255 days delayin filing the appeal.

2. Learned counsel for the appellant submits that after the impugned \ order dated 08.08.2016 was passed, the counsel for the appellant had informed the department/Delhi Energy Development Agency. Thereafter on 20.08.2016, he had received instructions to prepare the appeal. The appeal was prepared on 30.08.2016 and sent to the department for fmalization. However,the appeal was returned on 05.09.2016 and given to the clerk on LPA 410/2017 Page 1 of[6] 2018:DHC:9118-DB 07.09.2016 for filing the same in the Registry. Regularinquiries were made from the clerk as to the status ofthe appeal,however,the clerk assured that thesame had been filed. It is further stated thaton 22.10.2016,the clerk left the office and another clerk was appointed on 01.11.2016, Who on 03.11.2016, informed the counsel that no such LPA has been filed in the Registry. Thereafter another copy ofthe appeal was printed from the office and sentto the departmentforsignatures on22.11.2016. Thesigned copy of the appeal was received on 24.11.2016. Bythe time the signed copy ofthe appeal wasreceived,the office wasflooded with heavyseepage dueto which various files including the file of thp present LPA was destroyed. The counsel shifted to a new addressin Aipnl72Q17.::A another print out of the appeal was obtained on 22.04.201% to the department for signatures, which was then received on 05,05.2017 and the appeal was filed on 20.05.2017. ^ 7

3. This application has been veherhehft^^^^^^^^ by learned counsel for the respondentNo.l,who submits tliafresp^^ No.l is a poor worker and has been deprived of his salary -for 20 years, although, some payment was received for a short period under Section 17B ofthe Industrial Disputes Act,1947. C ~ Sf- i

4. We have learned counsel for the parties and considered their rival submissions.

5. In the case of Office of the ChiefPostmaster General & Ors. Vs. Living Media India Limited and Anr.,reported in AIR 2012SC1506,the Supreme Court ofIndia has analysed the entire law on the subject. It would be relevantto reproduce paras 11 to 13,which is reproduced below: LPA 410/2017 Page2of[6] "11) We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware ofthe date ofthejudgment of the Division Bench of the High Court in LPA Nos. 418 and 1006 of 2007 as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy ofthe said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for, certified copy of the impugned judgment pft;11.09.2009 or at least within a reasonable time. TheTact remains that the certified copy was applied only pn 08.01.2010,i.e. after a period of nearly,four nionths. In spite of affording another opportunity to/file better affidavit by placing adequate; material, neither the Department nor the.person m^harge has filed any explanation for not £ippl)dng;'te copy within the prescribed rjJen^ other dates mentioned in the affidavit which we have already extracted, clearly show that there;;;was delay at every stage and excepffnieritipriing fhe dates of receipt ofthe file and the decision taken,there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in LPA 410/2017 Page3of[6] prosecuting the matter to this Court by taking appropriate steps. 12)It is not in dispute thatthe 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 offiling a special leave petition in this Court. They cannot claim that they have a separate period oflimitation when the Department was possessed with competent persons familiar with court 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 GovernmentIv bf;:a, wing of the Government is a Though we are conscious of the fact that.' in a matter of condonation of delay when,there was no gross negligence or deliberate 'mabtion or lack of bonafide, a liberal cpn;eession}M be adopted to advance substantial,ju^ica,^iwei^e'^fthe view that. m the facts and cifbumstanb^- Department ij cannot take advantage of various earlier decisions. The claim on account ofimpersonahmachinery and inherited bureaucratic of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 13)In our view,it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there LPA 410/2017 Page4of[6] Yd was bonaflde effort, there is no need to accept the usual explanation thatthe 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 thatthey perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled forthe benefit ofafew.Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates^;^according to us, the Department has miserably:i;;fail^ to give any acceptable and cogent reasons sufficient to condone such a hpge delay/.' Accordingly, the appeals are liable to be disinissed on the ground of delay."

6. In the case ofOfficeofihejChiefPdsi^^ General& Ors.(Supra), the Supreme Court was considering an application seeking condonation of delay filed by a Government Department. The present case also pertains to a Government Department which admittedlyhas- department. The first question which arises for our consideration is whether the application discloses sufficient grounds for condonation ofdelay.

7. While considering the application seeking condonation of delay, the period ofdelay is notthe criteria. A short delay may not be condoned in the absence ofan acceptable explanation while a large delay may be condoned if the explanation is satisfactory. Courts cannot lose track of the fact that normally after the expiry ofthe period,the right to sue extinguishes and the LPA 410/2017 Page5of[6] V / 'I otherside acquires aright which should not be usually disturbed asit would cause injusticetothe opposite party.

8. The facts ofthis case disclose a very sorry state ofaffairs. A writ petition filed by the appellant was dismissed in default. An application for restoration was filed after 26 months, which was dismissed by the Single Judge. The appellant,still did not learn a lesson and has filed the present appealseeking condonation ofdelayof255 days.Thereisno explanationas to why the appellant which is the Government Department did not make effortsto ensurethatthe appeal wasfiled withinthe period oflimitation and whythe matterremained unattendedattheirendfor255days. InthecaseofUnionofIndiaandOrsy.RflmhhKumar;(1997)7SCC514 and P.K.Ramachandran v. StcUe ofK^cRa;& Am;(1997)7SCC 556 it was observed as under:- It would be noticedfrprifa l)erusal ofthe impugned order that the court has notfeyori^diany satisfaction thatthe explanationfor the delcd^;wds^pidi orsatisfactory, which isanessentialpri^reijuptbk^^d(^ation ofdelay."

9. A careful reading of the pres^epf;'^ in our view, does not repose confidence and we are unable to record our satisfaction that the explanation forthe delay was.eitherreasonable.'^ Accordingly, the presentappeal and applicationforcondonation ofdelayare dismissed. G.S.SISTANI,J AUGUST 10,2018/SU LPA 410/2017 SANGIT IN SEHGAL,J Page Oof[6]