There was nothing on record and/or demonstrated by the Respondents/Management that there was intentional delay and that the delay was mala fide and/or with any ulterior motive. Considering the present facts and circumstances and taking overall view of the matter, there was nothing to demonstrate that the Petitioner had deliberately and/or intentionally delayed filing of the present Appeal. She could not had, in any way, benefited by such delay, when her representations, admittedly, were pending with the Management, as well as, with the Education Officer. The Petitioner, who, even otherwise, worked for more than three years without any appointment letter, definitely, would like to wait for further continuation, as averred, that they promised her to continue in service. Therefore, to say that Petitioner should have filed the Appeal within the limitation despite the assurances were given and despite waiting for representations which Petitioner had already filed, just could not be the reason to overlook the merits and reflected even in the order as well as affidavit filed by the Respondents. Therefore, the Petitioner had made out sufficient case for condonation of delay. Even otherwise, in the interest of justice, no harm and/or prejudice would cause to the Respondents/Management if one more opportunity was given to the Petitioner to put up her case on merits. Hence, Application for condonation of delay was allowed.
3 Admittedly, the petitioner was working as Assistant Teacher in the school of respondent nos.1 and 2 with effect from 9th June 2003 ms.s.k.talekar 1/ 4 -2- 24.wp7519.10
continuously upto 30th April 2007. There was no letter of appointment issued to her. There is no dispute so far as she had worked for these three years with respondent nos.1 and 2. She, therefore, in fact, approached to the Education Officer on 9th January 2008 and thereafter also, from time to time and request was made even to the Management to continue her in services. She visited all these officers on various occasions, got only assurances.
4 There was no response received from both the authorities, during this period, therefore, for survival she worked under some other management. Ultimately, as there was no reply/communication received from the respondents, she preferred to file appeal with application for condonation of delay.
5 The learned counsel for the respondents have filed their reply. He relied upon number of judgments relating to the merits of the matter. Those judgments means the petitioner's case requires hearing on merits. The whole argument was involving the point of her entitlement and/or claim in question. The Presiding Officer has also noted the same, though dismissed the application mainly on the ground that she was working somewhere during this period.
ms.s.k.talekar 2/ 4 -3- 24.wp7519.10
I see that the same cannot be the reason to deny the claim raised by the petitioner in view of the undisputed facts on record and basically her continuous service for more than three years. 6 The learned counsel for the petitioner also relied upon the judgment of Supreme Court in (2005) 3 SCC 752 in case of State of Nagaland Versus Lipok A O and Others whereby the Supreme Court after considering the legal principles held that technical grounds including delay should not be the reason to deny the relief to the parties, if the case on merits is bona fide, clear and justifiable. 7 There is nothing on record and/or demonstrated by the respondents-management that there was intentional delay and that the delay was mala fide and/or with any ulterior motive. Considering the present facts and circumstances and taking overall view of the matter, there is nothing to demonstrate that the petitioner has deliberately and/or intentionally delayed filing of the present appeal. She could not have, in any way, benefited by such delay, when her representations, admittedly, are pending with the management, as well as, with the Education Officer. 8 The petitioner, who, even otherwise, worked for more than three years without any appointment letter, definitely, would like to wait for ms.s.k.talekar 3/ 4 -4- 24.wp7519.10
further continuation, as averred, that they promised her to continue in service. Therefore, to say that she should have filed the appeal within the limitation, despite the assurances were given and despite waiting for representations which she has already filed, just cannot be the reason to overlook the merits, as referred and reflected even in the order as well as affidavit filed by the respondents.
9 In my view, therefore, the petitioner has made out sufficient case for condonation of delay. Even otherwise, in the interest of justice, no harm and/or prejudice will cause to the respondents-management if one more opportunity is given to the petitioner to put up her case on merits. I am not deciding the merits of the matter at this stage. Therefore, by taking overall view of the matter, I am inclined to grant application for condonation of delay.
10 In the result, the following order :
ORDER
(i) The application of delay condonation is allowed. (ii) The Presiding Officer to hear the appeal in accordance with law, preferably within a period of six months. (iii) The petition is allowed accordingly. (iv) No order as to costs.
( ANOOP V. MOHTA, J. )
ms.s.k.talekar 4/ 4
Print Page
Bombay High Court
Smt. Biner Soman Dattatraya vs State Of Maharashtra & Ors on 3 July, 2012
Bench: Anoop V.Mohta
2 The petitioner, a widow having 12 years old daughter, was terminated from the post of Asst. teacher. For survival, she joined some other management temporarily. The learned Presiding Officer though observed the merits of the matter, rejected her application for condonation of delay in filing the appeal, as there was delay of more than two years.3 Admittedly, the petitioner was working as Assistant Teacher in the school of respondent nos.1 and 2 with effect from 9th June 2003 ms.s.k.talekar 1/ 4 -2- 24.wp7519.10
continuously upto 30th April 2007. There was no letter of appointment issued to her. There is no dispute so far as she had worked for these three years with respondent nos.1 and 2. She, therefore, in fact, approached to the Education Officer on 9th January 2008 and thereafter also, from time to time and request was made even to the Management to continue her in services. She visited all these officers on various occasions, got only assurances.
4 There was no response received from both the authorities, during this period, therefore, for survival she worked under some other management. Ultimately, as there was no reply/communication received from the respondents, she preferred to file appeal with application for condonation of delay.
5 The learned counsel for the respondents have filed their reply. He relied upon number of judgments relating to the merits of the matter. Those judgments means the petitioner's case requires hearing on merits. The whole argument was involving the point of her entitlement and/or claim in question. The Presiding Officer has also noted the same, though dismissed the application mainly on the ground that she was working somewhere during this period.
ms.s.k.talekar 2/ 4 -3- 24.wp7519.10
I see that the same cannot be the reason to deny the claim raised by the petitioner in view of the undisputed facts on record and basically her continuous service for more than three years. 6 The learned counsel for the petitioner also relied upon the judgment of Supreme Court in (2005) 3 SCC 752 in case of State of Nagaland Versus Lipok A O and Others whereby the Supreme Court after considering the legal principles held that technical grounds including delay should not be the reason to deny the relief to the parties, if the case on merits is bona fide, clear and justifiable. 7 There is nothing on record and/or demonstrated by the respondents-management that there was intentional delay and that the delay was mala fide and/or with any ulterior motive. Considering the present facts and circumstances and taking overall view of the matter, there is nothing to demonstrate that the petitioner has deliberately and/or intentionally delayed filing of the present appeal. She could not have, in any way, benefited by such delay, when her representations, admittedly, are pending with the management, as well as, with the Education Officer. 8 The petitioner, who, even otherwise, worked for more than three years without any appointment letter, definitely, would like to wait for ms.s.k.talekar 3/ 4 -4- 24.wp7519.10
further continuation, as averred, that they promised her to continue in service. Therefore, to say that she should have filed the appeal within the limitation, despite the assurances were given and despite waiting for representations which she has already filed, just cannot be the reason to overlook the merits, as referred and reflected even in the order as well as affidavit filed by the respondents.
9 In my view, therefore, the petitioner has made out sufficient case for condonation of delay. Even otherwise, in the interest of justice, no harm and/or prejudice will cause to the respondents-management if one more opportunity is given to the petitioner to put up her case on merits. I am not deciding the merits of the matter at this stage. Therefore, by taking overall view of the matter, I am inclined to grant application for condonation of delay.
10 In the result, the following order :
ORDER
(i) The application of delay condonation is allowed. (ii) The Presiding Officer to hear the appeal in accordance with law, preferably within a period of six months. (iii) The petition is allowed accordingly. (iv) No order as to costs.
( ANOOP V. MOHTA, J. )
ms.s.k.talekar 4/ 4
No comments:
Post a Comment