2008(6) ALL MR 183
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.B. CHAUDHARI, J.
Ku. Novita Tukaramji Mangle Vs. Shri. Saibaba Shikshan Prasarak & Ors.
Writ Petition No.495 of 2008
28th July, 2008
Petitioner Counsel: Shri. S. J. KHANDALKAR
Respondent Counsel: Shri. S. P. BHANDARKAR,,Shri. N. S. KHUBALKAR
(A) Limitation Act (1963), S.5 - Condonation of delay - Case before School Tribunal - Finding by School Tribunal that while deciding said issue court has to consider only averments of party who filed application for condonation of delay and has to ignore reply of other side - Not proper. (Para 2)
(B) Limitation Act (1963), S.5 - Delay of one year in preferring appeal before School Tribunal - Condonation of - Petitioners services were terminated w.e.f. 20-6-2005 - Fact that petitioner delivered female child on 12-11-2005 not disputed - Appeal filed by her in month of July, 2006 post delivery of petitioner has to be considered sympathetically - Said aspect not considered by Tribunal - Moreover delay on part of petitioner neither deliberate nor intentional - Entire period of delay i.e. from date of termination till date of filing of appeal - Condoned. (Paras 3, 4, 5)
2. This petition is directed against the order dated 26-11-2007 made by the Presiding Officer, School Tribunal, Amravati. There was a delay of about one year in preferring appeal before the School Tribunal. The learned Presiding Officer of the School Tribunal has in paragraph No.4 of his impugned order made out a strange proposition of law. The Tribunal has said that there is a settled law that for deciding issue of condonation of delay, the Court has to consider only averments of the party who filed the application for condonation of delay, meaning thereby the Court or Tribunal has to ignore the reply of the other side. When the explanation was called from the Presiding Officer, he has justified the same by saying that he wrote the said proposition of law following the law laid down consistently by the superior Courts that the averments in the plaint alone decide the jurisdiction of the Court. The reason in justification does not appeal to me. To decide whether Court has a jurisdiction or not and to decide whether delay deserves to be condoned or not are entirely two different things. Undoubtedly, for deciding the jurisdiction, the Court is required to look into the plaint and not the written statement, but for deciding condonation of delay application, to say that averments in application for condonation of delay only will be seen is absurd. On the contrary, to find out the truth whether reasons given for condonation of delay in the application are correct or not, the Court can find out from the reply the correctness of the reasons furnished for condonation of delay. Hence, the said proposition mentioned by the School Tribunal is not correct. The Tribunal ought to be careful before making such sweeping statements in judicial orders.
3. Now coming to the present case in so far as the application for condonation of delay is concerned, the petitioner amended the said application and averred therein that she delivered a female child on 12-11-2005. She therefore stated that she was under medical treatment of Dr. Shrotri since 30th April, 2005 and her services were terminated w.e.f. 20-6-2005. These averments have not been denied by supporting evidence and on the contrary they appear to be true. The fact that she delivered a female child on 12-11-2005 is not in dispute. She filed appeal somewhere in the month of July, 2006, meaning thereby that she filed appeal after the female child was born. It cannot be forgotten that she must have become helpless after delivering a child and, therefore, the post delivery period will have to be considered sympathetically. However, the Tribunal has not at all adverted to this important aspect and on the contrary has gone to observe as to how she applied for leave on 26-10-2005 after her services were terminated. In fact there was an amendment application that was allowed and the averments therein were not rebutted. Assuming that her statement about filing of application for leave on 26-10-2005 was false, she established that she delivered a female child on 12-11-2005. The Tribunal ought to have seen that the maxim viz. 'Falsus in uno falsus in Omnibus' does not apply in judicial proceedings. The approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Merely because in one respect the Court considers it unsafe to rely upon the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other aspects as well. In this case the fact that she delivered a female child on 12-11-2005 ought to have been considered by the Tribunal in the correct perspective. That having not been done, the petitioner cannot be allowed to suffer injustice. At any rate, it is not shown that the delay on her part was either deliberate or intentional.
4. Advocate Shri. Khandalkar for the petitioner makes a statement before me that if she succeeds in the appeal on merits, she will not claim any back wages for the entire period of delay i.e. from the date of termination till the date of filing of the appeal. Statement is accepted. Hence, I make the following order.
5. Writ Petition is allowed. The impugned order is quashed and set aside. The delay in filing appeal is condoned. The appeal be registered and be heard on merits. Statement made by Advocate Shri. Khandalkar is accepted. The School Tribunal to make orders accordingly in appeal.