ORDER
SHEET GA No.2725 of 2014 GA No.2728 of 2014 WITH AP No.220 of 1997 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE UNION OF INDIA Versus MANJU GUHA & ORS. BEFORE: The Hon'ble JUSTICE BISWANATH SOMADDER Date :
6. h February, 2015. Appearance : Mr. Partha Sarathy Bose, Sr. Adv. Mr. Indrajeet Dasgupta, Adv. …for the Union of India Mr. Kushal Pane, Adv. …for the respondent The Court: GA No.2725 of 2014 is an application for condonation of delay of 2590 days for filing of a restoration application, being G.A. No.2728 of 2014. The restoration application is in respect of a setting aside application which was dismissed for default on 12th July, 2007. It appears that the litigation was handled on behalf of the Executive Engineer, Coochbehar, Central Division – II of the Central Public Works Department by the Central Government Advocate at Kolkata. Pursuant to filing of the application for condonation of delay of 2590 days, this Court had earlier observed on 19th December, 2014, that there was simply no explanation provided in the application as to what the Advocate-on-Record of the Central Government was doing between the period 12th July, 2007, being the date of dismissal of the setting aside application for default and 14th August, 2013, being the date when the CPWD authorities came to know of the dismissal of the setting aside application (i.e., the date of receipt of a notice from the District Judge, Coochbehar, in respect of an execution application taken out by the respondents). This Court had, therefore, directed the applicant to file an affidavit giving day-to-day explanation for the delay to be provided by the office of the Advocate-on-Record of the Central Government at Kolkata – from the date of dismissal of the setting aside application on 12th July, 2007 till 14th August, 2013, being the date when the applicant came to know of the said order of dismissal. Such affidavit has been filed and is now on record. In order to come to a conclusion as to whether the instant application for condonation of delay of 2590 days should be allowed or not, it is necessary to quote at least a few paragraphs from the affidavit filed by the applicant, reads are as follows :
“3. I met with Mr. Madhab Charan Prusty, Deputy Government Advocate on 8th January 2015 and requested him to provide the information giving day to day explanation. Since Mr. Prusty had joined the Kolkata Office of the Ministry of Law & Justice only on 24.01.2014 as such he did not have any personal information in this regard. However, Mr. Prusty informed me that he would search out the relevant file and enquire about the steps taken in the matter.
4. I have further been informed that the relevant record is not traceable. In this regard it is submitted that some files are found missing after shifting of the office of the Ministry of Law & Justice from Raja Chamber, 4, K.S. Roy Road to 11 Strand Road in the month of October, November and December of 2006.
5. I have been informed that Shri S.N. Gupta, the then Junior Central Government Advocate and Advocate-on-Record in the instant matter was transferred to Delhi on 09.07.2001. He again came from Delhi to Kolkata on 29.10.2004 and used to look after the Original Side matter along with Shri P. Kumar, Junior Central Government Advocate (since retired) and Junior Central Government Advocate (since deceased). Shri S.N. Gupta retired on 31.10.2005. Shri Sashi Bhusan Dhara, Senior Court Clerk at the relevant point of time was dealing with the Original Side matter in Calcutta High Court but he has been missing since 05.01.2009. The other two Junior Central Government Advocates who were used to become Advocate-on-Records from time to time in respect of NonRevenue matters of the Original Side viz. Shri G.S. Makkar and R.C. Murti are not now in Kolkata. Shri Murti has resigned his job on 10.10.2008 and Shri Makkar has been transferred to Delhi 03.10.2012. Shri R.N. Bandopadhyay, the then Sr. Govt. Advocate and In-charge of the Branch Secretariat, retired on 31.05.2008. Smt. Sharmistha Bhattacharyya became In-charge of the Branch Secretariat on 23.04.2009 and retired on 31.03.2011. Thereafter at different times Shri Suresh Chandra, Joint Secretary and Legal Adviser and T.N. Tewari, Joint Secretary and Legal Adviser were In-charge of the Branch Secretariat. Both of them were transferred to Delhi on 23.01.2012 and 17.12.2013 respectively.
6. Thereafter, Shri S.S. Sarker, Senior Government Advocate became the Incharge of the Branch Secretariat w.e.f January 06, 2014. In 2003 Mr. Sarker was transferred from Kolkata to Mumbai. He again came from Mumbai to Kolkata in the last part of 2006 and used to look after the Revenue matters of Original Side and appellate Side Matters.
7. I have also learnt that Ministry of Law & Justice deals with the cases of all Central Government Ministries and Departments except Customs and Excise and Railways. As per the system the Central Government Advocates are to become Advocate-on-Records in huge number of cases. Apart from acting as the Advocate-on-Record the Central Government administrative and advice works in the Ministry. Advocates are to perform I was informed that when a counsel from the panel is engaged to act as junior to the Senior Counsel, he is required to keep track of the day to day status of the allotted matter and inform the Incharge/Officers/Government Advocates of the Ministry of Law & Justice. The concerned department is also required to keep in touch with the said Junior Central Government Counsel. Senior Counsel Shri N.C. Roy Chowdhury has already expired. Smt. Ruma Sikdar acting as Jr. Counsel is not in the panel. Although from the records of the CPWD it appears that two letters were written by the then Executive Engineer no record is available as to whether such letters were in fact received by the Ministry of Law & Justice or whether any action was taken pursuant thereto. However, on approach of the CPWD to file restoration application, a file has been opened in the Ministry of Law & Justice for the instant G.A. when Smt. M.G. Upadhyay, the then Junior Central Government Advocate acting as Advocate on record engaged the Counsels. But Smt. M.G. Uphadhyay has also been transferred to Delhi.
8. In the aforesaid facts and circumstanced (sic) I submit that inspite of best and sincere efforts, day to day explanation about the delay in filing the restoration application from 12th July, 2007 till 14th August, 2013 cannot be given due to missing of the record and transfer/retirement of the concerned respective Officers which is sincerely regretted. However, a report on the delay as submitted herein may be treated as a gross explanation for the delay which may be accepted in view of the fact that the day to day explanation for the aforesaid situation in beyond the control/capacity in the aforesaid facts and circumstances.
9. As already stated there are some laches on the part of the Advocates/Counsels for which the Applicant ought not to be penalised. Moreover, in view of the fact that the aforesaid application challenging the award had been filed in order to prevent loss to the public exchequer and if the aforesaid petition is not disposed of on merits and if the order dated 7th July 2007 is not set aside, the petitioner and/or public exchequer will be seriously prejudiced and suffer irreparable loss and injury, the applicant prays that the application of restoration be allowed.”
. A bare perusal of the paragraphs, quoted above, clearly reveals utter callousness, unimaginable negligence and total lethargy on the part of the concerned authorities – including the office of the Central Government Advocate at Kolkata – in conducting the litigation for which no indulgence or premium ought to be given by any Court. If public exchequer will be seriously prejudiced, as sought to be contended, then the least the concerned public authorities ought to have done was to demonstrate palpable due diligence in prosecuting the litigation. In this context, one may take notice of the observations made by the Supreme Court in paragraph 25 of its judgment rendered in the case of Maniben Devraj Shah Vs. Municipal Corpn. of Brihan Mumbai reported in (2012) 5 SCC157 which reads as follows : “In cases involving the State and its agencies/instrumentalities, the court can take note of the fact that sufficient time is taken in the decision-making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.”
. The instant application for condonation of delay as well as the affidavit filed by the applicant pursuant to the order dated 19th December, 2014, is totally silent as to who was specifically incharge of the litigation at the material point of time when the setting aside application was dismissed for default on 12th July, 2007. It is also silent as to when the relevant record went missing. If the office of the Ministry of Law & Justice was shifted during the months of October, November and December of 2006, how then can such shifting possibly justify the relevant file going missing at a latter point of time, i.e., between 12th July 2007 and 14th August, 2013. The affidavit of the applicant filed pursuant to the order dated 19th December, 2014, not only does not provide any day-to-day explanation, as sought for by this Court, it is also a clear revelation of an evasive and novel approach being adopted by shifting responsibility from one officer to another citing transfer or retirement or resignation as primary causes for not demonstrating due diligence in prosecuting the litigation in the manner it ought to have been prosecuted. This is not a case where the delay is of a few days. inordinate period of delay. This is a case of an In Vedabai alias Vaijayanatabai Baburao Patil Vs. Shantaram Baburao Patil & Others reported in (2001) 9 SCC106 the Supreme Court observed that a distinction must be made between a case where the delay is inordinate and the case where the delay is of a few days and whereas in the former case, the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. In the facts of the instant case, it is noticed that the respondents in the instant matter obtained an award in their favour passed by the sole Arbitrator as far back as on 29th September, 2000. The award was put in execution and ultimately, the learned executing Court issued a notice on 14th August, 2013, which gave rise to filing of the instant section 5 application together with the restoration application, being G.A. No.2728 of 2014, for the purpose of having the section 34 application – which was dismissed for default on 12th July, 2007 – restored. In such facts and circumstances, it will be a travesty of justice if this Court condones the delay of 2590 days for filing of the restoration application based on the explanation provided by the applicant in the instant section 5 application as well as in the affidavit filed in Court pursuant to the order dated 19th December, 2014. For reasons stated above, G.A. No.2725 of 2014 is liable to be dismissed and is accordingly dismissed. In view of dismissal of the section 5 application, nothing remains of the restoration application, being GA No.2728 of 2014, which is also, accordingly, dismissed. Urgent phtostat certified copies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. (BISWANATH SOMADDER, J.) akb/sg2