Rule. Rule is made returnable forthwith. Shri S.P Kshirsagar; learned Counsel waives notice on behalf of the respondent Nos. 1, 2 and 3 and Shri D.P Thakre, learned Assistant Government Pleader waives notice on behalf of the respondent No. 4. Heard finally by consent of the parties.
2. The present petition challenges the order, dated 17th January, 2003 passed by the learned Presiding Officer, School Tribunal in Appeal No. STN/227/1996, vide which the appeal of the petitioner/appellant has been rejected.
3. At the hearing of the petition, Shri A.S Chandurkar, the learned Counsel appearing on behalf of the petitioner restricted his prayer for remand of the matter. Shri A.S Chandurkar has raised two fold submissions. Firstly, that having entertained the appeal on merits, it was not permissible for the learned Tribunal to reject the same on the ground of delay. And if the learned Tribunal comes to a finding that the appeal is filed beyond the period of limitation, it is the duty of the Tribunal to bring it to the notice of the appellant and give him an opportunity to make an application for condonation of delay. He also submits that even on oral prayer, the Tribunal can consider the question of condonation of delay. Secondly, he submits that the learned Tribunal has to first decide the question of limitation and thereafter only it can enter into the merits of the matter. He submits that by the impugned order, the learned Tribunal has held that the appeal was filed beyond limitation and has also decided the appeal on merits. According to the learned Counsel, such a course was not permissible in law. Shri A.S Chandurkar, the learned Counsel has relied on the judgment of the Apex Court in the case of State of M.P v. Pradeep Kumar, reported in (2000) 7 SCC 372 a judgment of this Court in the case of Anusayabai Ramchandra Lande v. Union of India, reported in 1992 Mh. L.J 366, a judgment of the Madhya Pradesh High Court in the case of Suresh Kumar v. Firm Kurban Hussain Taiyab Ali, reported in 1996 MPLJ 330 : AIR 1996 MP 151 and the judgment of the Full Bench of the Gujarat High Court in the case of Municipal Corporation of Ahmedabad, through the Municipal Commissioner v. Voltas Limited and etc., reported in AIR 1995 Gujarat 29.
4. Shri S.P Kshirsagar, the learned Counsel appearing on behalf of the respondent Nos. 1, 2 and 3, on the contrary, submits that the learned Presiding Officer has rightly dismissed the appeal of the petitioner. He submits that the petitioner's services were terminated vide notice dated 30th March, 1996. The said notice was received on the same date. He submits that the said notice of one month came into effect on 30th April, 1996 and as such the appeal ought to have been filed within a period of one month thereof. He submitted that the petitioner could not have been permitted to challenge the imaginary termination dated 8-7-1996. He submits that the learned trial Court has, therefore, rightly dismissed the appeal of the petitioner. Relying on the judgment of the learned Single Judge of this Court in the case of Savitribai Fule Shikshan Prasarak Mandal, Wardha v. Dhananjay Deoraoji Diwate, reported in 2004 (3) Mh. L.J 18, he submits that since the petitioner has not challenged the termination which came into effect on 30th April, 1996, the appeal itself was not tenable. He further submits that since the respondent-management had taken a specific objection regarding the appeal being filed beyond the period of limitation, an opportunity was available to the petitioner to file an application for condonation of delay. He submits that the petitioner having not availed of the said opportunity, cannot be heard to raise the grievance in the present petition.
5. Therefore, the question that arises for consideration is as to whether it was necessary for the learned Tribunal to point out to the appellant that in his view, the appeal was beyond limitation and give an opportunity to make an application for condonation of delay.
6. While considering the provisions of Order 41, Rule 3A of the Code of Civil Procedure, the Apex Court in the case of State of M.P v. Pradeep Kumar (cited supra) has observed thus:—
“10. What is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of Rule 3-A? It must be noted that the Code indicates in the immediately preceding Rule that the consequence of not complying with the requirements in Rule 1 would include rejection of the memorandum of appeal. Even so, another option is given to the court by the said Rule and that is to return the memorandum of appeal to the appellant for amending it within a specified time or then and there. It is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without an accompanying application to condone delay the consequence cannot be fatal. The court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the memorandum of appeal (which was not accompanied by an application explaining the delay) as defective. Such defect can be cured by the party concerned and present the appeal without further delay.
11. No doubt sub-rule (1) of Rule 3-A has used the word “shall”. It was contended that employment of the word “shall” would clearly indicate that the requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the court. The word “shall” in the context need be interpreted as an obligation cast on the appellant. Why should a more restrictive interpretation be placed on the sub-rule? The Rule cannot be interpreted very harshly and make the non-compliance punitive to an appellant. It can happen that due to some mistake or lapse an appellant may omit to file the application (explaining the delay) along with the appeal.
12. It is true that the pristine maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism “to err is human” is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine.”
7. The Division Bench of this Court in the case of Anusayabai Ramchandra Lande v. Union of India (cited supra) has observed thus:—
“…. Thus, legally the order cannot stand. Are we procedurally powerless to quash it in this appeal? We do not think so. The said order is appealable under Order 43, Rule 1, Civil Procedure Code and appeal lies to the High Court. Limitation for filing appeal against an order is 90 days and quite obviously challenge to the said order is much beyond that period. But, the Court can always condone delay where section 5 of the Limitation Act applies. It is true that there is no regular written application for condonation of delay before us. But that facet by itself cannot come in the way of condoning the delay in case circumstances so warrant. Section 5 does not mandate making a written application though that is the practice which is and must normally be insisted upon. But there is no bar to consider even the oral prayer in exceptional cases. The course which the appellants want us to adopt is not unknown. There have been precedents where this has been done e.g The case of L/Naik Mahabir Singh v. Chief Of Army Staff. Staff, 1990 SCC (Cri) 625.”
8. The M.P High Court in the case of Suresh Kumar v. Firm Kurban Hussain Taiyab Ali (cited supra), while considering provisions of section 5 of the Limitation Act, has held that in a given case, it is not necessary to make a formal application under section 5 of the said Act if the facts presented before the Court satisfied the judicial conscience of the Court that the applicant before it was prevented for sufficient cause in bringing the proceedings well within limitation. It further held that if the Court is of the opinion that in absence of formal application the delay cannot be condoned then it is always the duty of the Court to give an opportunity to the applicant before it to move an application explaining the cause for delay and seek condonation under section 5 of the Limitation Act. The M.P High Court further held that the applicant must get proper opportunity to explain the circumstances which prevented him from filing the proceedings within limitation.
9. It is also necessary to refer to sub-section (2) and sub-section (3) of section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 which read thus:—
“(2) Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be:
Provided that, where such order was made before the appointed date, such appeal may be made within sixty days form the said date.
(3) Notwithstanding anything contained in sub-section (2), the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period.”
10. It can thus be seen that the aforesaid provisions do not prescribe for rejection of memorandum of appeal in the case where the appeal is not accompanied by the application for condoning the delay. On the contrary, it can be seen from the sub-section (3) of section 9 that the power is given to the Tribunal and that the Tribunal may entertain an appeal made to it after the expiry of period of thirty or sixty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period. It can thus be seen that a formal application for condonation of delay is also not necessary. The learned School Tribunal, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within that period may condone the delay and entertain the appeal. I, therefore, see no reason as to why the law laid down by the Apex Court in the case of State of M.P v. Pradeep Kumar (cited supra) would not be applicable to the facts of the present case. The Division Bench of this Court in the case of Anusayabai Ramchandra Lande v. Union of India (cited supra) also holds that the law of limitation, which is procedural in nature, would not prevent a party from agitating its grievance, if it is found that for sufficient reason the applicant/appellant was prevented from preferring the appeal within the period.
11. I am also in agreement with the law laid down by the M.P High Court in the case of Suresh Kumar v. Firm Kurban Hussain Taiyab Ali (cited supra) that if the Tribunal comes to a conclusion that the appeal was not filed within limitation then it should give an opportunity to the party to make an application for condonation of delay. In the present case, from the order itself, it can be seen that though the Tribunal had on earlier occasion entertained the appeal on merits, in its final order has come to a finding that the appeal of the petitioner was filed beyond the prescribed period of limitation. In my view, before dismissing the appeal of the petitioner on the ground of delay, the learned Tribunal ought to have given an opportunity to the appellant to make an application for condonation of delay. I find support in the view I have taken from the aforesaid judgments of the Supreme Court in the case of State of M.P v. Pradeep Kumar (cited supra) and M.P High Court in the case of Suresh Kumar v. Firm Kurban Hussain Taiyab Ali (cited supra).
12. That takes us to the next question as to whether the approach of the learned Tribunal in deciding the matter on merits when he had come to the conclusion that the appeal was liable to be rejected on the ground of it being filed beyond limitation was a right one. In this respect, it may be useful to refer the judgment of the Full Bench of the Gujarat High Court in the case of Municipal Corporation of Ahmedabad v. Voltas Limited and etc. (cited supra). In para 7 of the said judgment, Justice Y.B Bhatt, delivering the main judgment has observed thus:—
“The next contention raised by the learned counsel for the applicant is to the effect that the merits of the substantive matter, in respect of which the delay is sought to be condoned, must be examined, and where it is found that the substantive matter is good on merits, any and all delay in filing the substantive matter must be condoned, even if the delay is not satisfactorily explained. In substance, therefore, the contention is to the effect that the merits of the substantive matter is the sole criterion, or at the very least a predominant factor, to be borne in mind by the Court while considering the application for condoning delay. To our mind, this submission puts the cart before the horse. The substantive matter in respect of which delay is sought to be condoned has no existence in law, so far as the Court is concerned, until the delay is condoned. In fact, until the delay is condoned the Court cannot take cognizance of the merits or otherwise of the substantive matter. In this limited context, the application for condonation of delay create a jurisdictional barrier against the consideration of the substantive matter on merits.”
13. Justice M.B Shah (as he then was) concurring with the main judgment delivered by Justice Bhatt, has observed thus:—
“Further, the contention that the delay is required to be condoned on the ground that the applicant has a good case on merits or that the merits of the matter should be considered as a predominant factor for condonation of delay requires to be rejected. Delay is condoned if sufficient cause for delay is shown. But that would not mean that for deciding the application for condonation of delay, merits should be decided. If the merits are decided for condoning delay, it would be against the provisions of Section 3 of the Limitation Act, 1963, section 3, inter alia, specifically provides that every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Section 3 of the Limitation Act is mandatory and is based on well recognised principles of equity. This bar is subject to the provision of sections 4 to 24 of the Limitation Act.”
14. I am in respectful agreement with the aforesaid views expressed by the Gujarat High Court. I, therefore, find that the learned Presiding Officer, School Tribunal was not justified in entering into the merits of the matter while rejecting the appeal on the ground that it was filed beyond the period of limitation. In my view, the learned Tribunal has erred in entering into the merits of the matter while rejecting the appeal of the petitioner on the ground that it was filed beyond the period of limitation. In that view of the matter, the impugned order is not sustainable in law and is, therefore, quashed and set aside. The appeal is remanded to the learned School Tribunal for deciding it afresh. It is needless to state that as discussed hereinabove, the learned Presiding Officer, School Tribunal will grant an opportunity to the petitioner to file an application for condonation of delay. It is further made clear that only after the decision on the application for condonation of delay, the learned Presiding Officer, School Tribunal will proceed with the merits of the matter.
15. The petition stands disposed of in aforesaid terms. Rule is accordingly made absolute with no order as to costs.
Order accordingly.