Judgment & Order (Cav)

N. Unni Krishnan Nair, J.

1. Heard Mr. D. Nath, learned Sr. Govt. Advocate, Assam appearing for the applicant/ appellant. Also heard Mr. K.N. Chouhury, learned Sr. counsel assisted by Mr. D.J. Das, learned counsel for the respondent No. 1.

2. The present interlocutory application has been instituted invoking the provisions of Section 5 of the Limitation Act, 1963, praying for condonation of delay of 258 days in instituting the connected writ appeal, assailing the judgment and order dated 29-10-2024 passed by the learned Single Judge in W.P.(C) No. 1053/2024.

3. Before considering the contentions raised in the present interlocutory application, it would be apt to notice the facts leading to institution of the connected appeal by the applicants, herein.

The opposite party No. 1, who was a member of the Assam Civil Service, while serving as the Chief Executive Officer, Darrang Zilla Parishad came to be placed under arrest on 22-09-2017 by the Vigilance and Anticorruption Cell, Assam in connection with ACB P.S. Case No. 24/2017, under Section 7/13(1)(D)/13(2) of the Prevention of Corruption Act, 1988. On his arrest in connection with the said case the opposite party No. 1 was vide notification dated 12-10-2017 placed under suspension w.e.f. the date of his arrest.

Thereafter, a show-cause notice dated 09-02-2018 came to be issued to the opposite party, instituting a departmental proceeding against him, basing of allegation similar to the one alleged against him in the pending criminal proceedings.

The opposite party No. 1, submitted his show-cause reply, however, the same being found to be not satisfactory, a departmental enquiry came to be ordered and for conduct of the same a Enquiry Officer and a Presenting Officer, came to be appointed.

As the departmental proceeding instituted against the petitioner, was pending, the criminal proceedings instituted against the opposite party was proceeded with and on conclusion of the trial, the learned Special Judge, Assam vide judgment and order dated 19-07-2023, passed in Special Case No. 32/2017, proceeded to acquit the opposite party from the charges framed against him, therein.

The opposite party No. 1, by projecting his acquittal in Special Case No. 32/2017, approached the departmental authorities, praying for dropping of the departmental proceedings instituted against him.

The departmental authorities having not closed the departmental proceeding, the opposite party No. 1 approached the writ court by way of instituting a writ petition, being W.P.(C) No. 1053/2024, assailing the action on the part of the applicants, herein, in continuing with the departmental proceedings, against him.

The learned Single Judge, upon examining the issues arising, proceeded vide judgment and order dated 29-10-2024 to dispose of W.P.(C) No. 1053/2024, by directing the applicants, herein, to conclude the departmental proceedings pending against the opposite party No. 1, herein, within a period of 01 (one) month from the date of receipt of the certified copy of the order. It is to be noted that the learned Single Judge had also concluded that continuation of the departmental proceeding against the opposite party No. 1, in view of his acquittal basing on similar charge in the criminal proceeding, was wholly unfair and unjustified.

The departmental proceedings having not been concluded within the timeframe prescribed by the learned Single Judge, the applicants, herein, instituted an interlocutory application being I.A.(C) No. 3844/2024 (in W.P.(C) No. 1053/2025), seeking extension of time for concluding the departmental proceedings, instituted against the petitioner.

The learned Single Judge, upon considering the issues arising in I.A.(C) No. 3844/2024, proceeded vide order dated 09-01-2025, to direct the applicants, herein, to conclude the departmental proceedings, pending against the opposite party, strictly within a period of 01 (one) month from the date of the order.

The applicants, thereafter appointed a new Enquiry Officer, as the originally appointed Enquiry Officer, had retired from her services, on reaching the age of superannuation and resumed the enquiry in the matter.

The opposite party being aggrieved by the appointment of a new Enquiry Officer, assailed such appointment by instituting a writ petition, being W.P.(C) No. 1076/2025. The learned Single Judge, on consideration of the issues arising on the matter, proceeded vide order dated 06-03-2025 to issue notice on the matter and in the interim, stayed the disciplinary enquiry initiated against the opposite party, herein.

In the backdrop of the said facts, the applicants, herein, have instituted the connected appeal, assailing the order dated 29-10-2024 passed by the learned Single Judge, in W.P.(C) No. 1053/2024.

4. Mr. D. Nath, learned Sr. Govt. Advocate, Assam appearing for the applicants has submitted that on receipt of the certified copy of the order dated 29-10-2024, on 04-11- 2024, from the opposite party No. 1, the file on being received from the office of the Sr. Govt. Advocate, Assam, the initially appointed Enquiry Officer having retired, the matter was processed for appointment of a new Enquiry Officer. However, the timeframe as granted by the learned Single Judge vide judgment dated 29-10-2024 having expired, an interlocutory application being I.A.(C) No. 3844/2024, was instituted seeking extension of further 03 (three) months to conclude the departmental proceeding pending against the opposite party No. 1. He further submits that the said interlocutory application was disposed of by the learned Single Judge vide order dated 09-01-2025, granting to the applicant further period of 01 (one) month w.e.f. 09-01-2025. Accordingly the departmental enquiry against the applicant was resumed and by order dated 06-02-2025, a new Enquiry Officer was appointed to complete the departmental proceeding. He submits that the opposite party No. 1, thereafter, had approached this Court again by way of filing W.P.(C) No. 1076/2025 against the order appointing the new Enquiry Officer. The learned Single Bench, vide order dated 06-03-2025, had stayed the continuance of the departmental enquiry against the petitioner. He submits that in the meanwhile the Home & Political Department had also preferred an appeal assailing the judgment and order dated 19-07-2023, passed by the Special Judge, Assam in Special Case No. 32/2017, acquitting the opposite party No. 1, from the charges framed against him, therein. He further submits that the matter is pending consideration of the application for condonation of delay.

5. Mr. Nath submits that in view of the above facts, a decision was taken for instituting an appeal against the judgment and order dated 29-10-2024 and his office being required to take necessary steps, the memo of appeal was prepared and was ready for filing in the 1st week of August, 2025, the connected appeal accordingly was filed on 14-08-2025.

6. He submits that the reasons as adduced in the interlocutory application would bring to the forefront that the authorities had not delayed the filing of the connected writ appeal intentionally and/ or deliberately and the delay had so occasioned in view of the peculiar facts involved in the present proceeding. He submits that in the event the delay is not condoned and the connected appeal is not heard on merit, grave miscarriage of justice would occur, as the appeal needs to be decided along with W.P.(C) No. 1076/2025. He accordingly prayed that this Court would be pleased to condone the delay of 258 days in preferring the connected appeal.

7. Per contra, Mr. K.N. Choudhury, learned senior counsel, appearing for the opposite party No. 1, has submitted that the judgment and order dated 29-10-2024, passed by the learned Single Judge in W.P.(C) No. 1053/2024, would not mandate any interference, inasmuch as, the same is well reasoned one and was so passed following the applicable decisions of the Hon’ble Supreme Court in the matter. He submits that the respondents in the interlocutory application have not explained as to why the appeal was not preferred within the period of limitation, after passing of the judgment and order dated 29-10-2024. He submits that no explanation has been adduced in the interlocutory application to justify the delay of 258 days occasioning in preferring the connected appeal. He submits that the applicants are guilty of laches in the matter and accordingly on the ground of efflux of time due to the bureaucratic process involved, the condonation of the delay involved would not mandate acceptance. He further submits that the contention raised by the applicants in the interlocutory application would go to reveal that after passing of the judgment and order dated 29-10-2024, the matter was processed towards compliance of the direction so passed, therein. He submits that the action on the part of the applicants, herein, in instituting an interlocutory application seeking extension of time for completion of the departmental proceedings, instituted against the opposite party No. 1, which was granted by the writ court, demonstrates that there was no contemplation on the part of the applicants, at the relevant point of time to assail the judgment and order dated 29- 10-2024. He further submits that action on the part of the applicants, herein, is not promptly assailing the judgment and order dated 29-10-2024, rather proceeding to comply with the same, demonstrates that the impugned judgment and order dated 29- 10-2024 had attained its finality.

8. In the above premises Mr. Choudhury submits that it would not be permissible for the applicants, to assail the judgment and order dated 29-10-2024 at this juncture and that too by not adducing “sufficient cause” towards justifying the delay occasioning in institution of the connected appeal.

9. In support of his submission Mr. Choudhury, learned Sr. counsel for the opposite party No. 1 relies on a decision of the Hon’ble Supreme Court in the case of Postmaster General Vs. Living Media India Ltd. reported in (2012) 3 SCC 563.

10. In the above premises Mr. Choudhury submits that the present interlocutory application would not mandate acceptance by this Court and the same is required to be dismissed.

11. We have heard learned counsels for the parties and perused the materials available on record.

12. The facts leading to filing of the connected appeal as noted hereinabove are not in dispute. It is the categorical contention of the learned senior counsel appearing for the opposite party No. 1 that the applicants in the interlocutory application have not assigned any cause, leave aside sufficient cause, for condonation of the delay occasioning in instituting the connected appeal and had in this connection relied upon a decision of the Hon’ble Supreme Court in the case of Postmaster General (Supra) .

13. At the outset we would consider the decision of the Hon’ble Supreme Court in the case of Postmaster General (Supra) . The Hon’ble Supreme Court in the said decision held that Government bodies, their agencies and instrumentalities cannot be permitted for the purpose of condonation of delay, raise a plea of existence of a impersonal machinery and inherited bureaucratic methodology of making several notes, in view of the modern technologies being used and available. The Hon’ble the Supreme Court further held that it was high time that the practice of condoning delay merely because the litigant is a government entity be done away with, and that delay should be condoned only where there is a reasonable and acceptable explanation for such delay accompanied by a bonafide effort. It further observed that the usual explanation of bureaucratic inefficiency and of procedural red tapism can no longer be accepted. Further, the Hon’ble Supreme Court has laid down that the condonation of delay is a matter of exception and cannot be treated as an anticipated privilege accruing to governmental bodies by reason of their hierarchical structure or bureaucratic methodology. It was further stipulated that law shelters everyone under the same light and should not be swirled for the benefit of a few.

14. A perusal of the decision of the Hon’ble Supreme Court in the case of Postmaster General (Supra) would reveal that there is a significant shift in the matter of condonation of delay under Section 5 of the Limitation Act, particularly where the State or any of its instrumentality is involved. The shift is from a regime that once accorded preferential indulgence to the State, premised on its bureaucratic complexities and institutional inertia, to one which insists upon parity between the government and private litigants. The rationale is that public interest is better served not by excusing governmental inefficiency, but by fostering accountability, diligence, and responsibility in the conduct of public litigation. Post the decision of the Hon’ble Supreme Court in the case of Postmaster General (Supra), condonation of delay is to remain an exception, not the rule. The governmental litigants, no less than private parties, must demonstrate bonafide, sufficient, and cogent cause for condonation of the delay occasioning in instituting proceedings. Absent such justification, delay cannot be condoned merely on the ground of the identity of the applicant as the State.

15. The Hon’ble Supreme Court had the occasion to consider its decision in the case of Postmaster General (Supra) , in the case of State of Rajasthan Vs. Bal Kishan Mathur (Dead) through Legal Representative reported in (2014) 1 SCC 592 , where the Hon’ble Supreme Court in the said decision explained that as long as there is no gross negligence or deliberate inaction or lack of bona fides, a broad and liberal approach should be adopted when dealing with an application for seeking condonation of delay. It further laid down that unless the explanation furnished for the delay is wholly unacceptable or if no explanation whatsoever is offered or if the delay is inordinate and third party rights had become embedded during the interregnum, the courts should lean in favour of condonation. The observations made in this connection in paragraph 8 being relevant is extracted here-in-below:-

                   “8. It is correct that condonation of delay cannot be a matter of course; it is also correct that in seeking such condonation the State cannot claim any preferential or special treatment. However, in a situation where there has been no gross negligence or deliberate inaction or lack of bona fides this Court has always taken a broad and liberal view so as to advance substantial justice instead of terminating a proceeding on a technical ground like limitation. Unless the explanation furnished for the delay is wholly unacceptable or if no explanation whatsoever is offered or if the delay is inordinate and third-party rights had become embedded during the interregnum the courts should lean in favour of condonation. Our observations in Postmaster General v. Living Media India Ltd. and Amalendu Kumar Bera v. State of W.B. do not strike any discordant note and have to be understood in the context of facts of the respective cases.”

16. Noticing the decision of the Hon’ble Supreme Court in the case of Postmaster General (Supra) and Bal Kishan Mathur (Supra) , this Court would now examine as to whether the parameters set out by the Hon’ble Supreme Court for condonation of delay, has been met by the applicants, in the present interlocutory application. We have carefully perused the causes as set out by the applicants in the interlocutory application for condonation of delay in instituting the connected appeal, in the light of the facts involved in the matter. On a consideration of the causes so adduced in the interlocutory application, we are of the considered view that the applicants were found to have carried out sincere efforts in the matter for concluding the departmental proceedings instituted against the opposite party. The applicants have not sought to justify the delay in institution of the connected appeal, on the ground of processing the matter at various levels of the Governmental hierarchy for arriving at a decision to prefer the appeal. We find that the causes highlighted are in the form of explanations and it demonstrates genuineness in action. We have also not found the delay occasioning in instituting the connected appeal to stem from gross negligence, deliberate inaction or lack of bonafide or indifferent or casualness in conduct. Accordingly, we are of the considered view that the explanation adduced constitutes “sufficient cause” for the purpose of condonation of delay involved in instituting the connected writ appeal. The decision of the Hon’ble Supreme Court in the case of Postmaster General (Supra) having not shut down the door on the prayer for condonation of delay made by the State in all cases involving bureaucratic processes, considering the fact that we have found the explanation adduced in the interlocutory application to be sufficient cause for the purpose of condonation of delay, we are of the considered view that the delay of 258 days in instituting the connected writ appeal would mandate to be condoned.

17. The applicants had urged before us, that it would not be permissible to conclude the departmental enquiry against the opposite party No. 1, in a fair and just manner, given the conclusions reached by the learned Single Judge in the judgment and order dated 29-10-2024, while on the other hand, the opposite party No. 1, had urged that the judgment and order dated 29-10-2014 being well reasoned one, the same would mandate no interference. We are of the view that the said contentions touching upon the merits of the case, would not mandate an adjudication in the present interlocutory application and we leave it open for consideration in the connected appeal. We for the purpose of condonation of the delay in instituting the connected appeal have referred to the facts involved to only appreciate the causes advanced for drawing satisfaction that the same constitute sufficient cause for condonation of the delay involved as well as the bonafides on the part of the applicants to take the departmental proceedings instituted against the opposite party No. 1 to its logical conclusion.

18. Accordingly, basing on the satisfaction so drawn, we condone the delay of 258 days occasioning in institution of the connected writ appeal. The interlocutory application consequently stands allowed.

19. The Registry to register the connected appeal and list the same for ‘admissions’ expeditiously.