JUDGMENT
B.J. Shethna, J.
1. The applicant, Shri K.R. Chauhan, was appointed as Assistant Teacher on probation for a period of two years with effect from 17.11.1969, in a private school, o/e/ Bharatiya Vidya Mandir, New Kandla, run by Kandla Port Trust, Gandhidham. While on probation, he was served with show cause notice on 23.4.1971, regarding serious misconduct of misbehaving with girl students of the school. The Disciplinary Authority found the charges of misbehaviour with the girl students proved, therefore, imposed penalty of withholding of increments for a period of three years without cumulative effect, by order dated 28.5.1975. Aggrieved of that order, an appeal was preferred to the Appellate Authority, i.e. The Chairman, Kandla Port Trust. Considering the seriousness of the charges found to be proved against the teacher, the Chairman issued notice on 22.12.1975 against the teacher calling upon him to show cause as to why penalty of stoppage of three increments without future effect should not enhanced to dismissal from service. After considering the reply, he was dismissed from service. He challenged the same before the Gujarat Secondary Education Tribunal (“Tribunal”). The Tribunal by its judgment and order dated 11.4.1997, set aside the order of removal and ordered to reinstate the teacher in service with all benefits of service, including back wages. That order was challenged by the trust and the school management by way of Special Civil Application No. 604 of 1997 before this Court, which was dismissed by the learned Single Judge of this Court on 20.6.1977. Letters Patent Appeal No. 130 of 1977 filed against the order of the learned Single Judge was also disposed of by the Division Bench of this Court on 20.11.1985 and the order of the learned Single Judge as well as Tribunal were quashed and set aside and the matter was remanded to the Tribunal for its fresh decision on merits by giving opportunity to the parties to lead further evidence in the case. Before the Tribunal, application was submitted, but the same was rejected by the Tribunal on 11.8.1988, therefore, the trust and the school management approached this Court by way of Special Civil Application No. 6460 of 1988. But the same was also rejected by the High Court, against which S.L.P. was preferred before the Honourable Supreme Court, which was disposed of by following observations:-
“The Tribunal will first decide the question with regard to the validity of the inquiry held by the appellants. In case the Tribunal comes to the conclusion that the inquiry held was not valid the Tribunal will give opportunities to both the parties to lead whatever evidence they propose to produce and then decide the matter on merits. The appeal is allowed accordingly with no order as to costs.”
2. Thereafter, the Tribunal by its order dated 15.4.1996 held that the inquiry was illegal. That order of the Tribunal was once again challenged before this Court by way of Special Civil Application No. 4483 of 1996, but the same was rejected on 1.7.1996. However, while rejecting the petition, this Court observed that the petitioner may satisfy the Tribunal that the finding recorded by the Tribunal on the preliminary issues require consideration and if such a request is made, then the Tribunal may consider the same. However, the Tribunal, by its impugned order dated 23.9.1996, allowed the appeal of the teacher and set aside the order of removal, which was challenged by the trust and the school management before this Court by way of Special Civil Application No. 8255 of 1996. The learned Single Judge of this Court, by his judgment and order dated 18.6.1998, allowed the petition filed by the trust and the school management and set aside the impugned judgment and order dated 23.9.1996 passed by the Tribunal. However, while setting aside the judgment and order passed by the Tribunal on 23.9.1996, the learned Single Judge made it clear that the amount of Rs. 30,000/- deposited by the petitioner-trust and school managment and paid to the teacher shall not be recovered from him.
3. The aforesaid judgment and order passed by the learned Single Judge of this Court on 17/18-6-1998 in Special Civil Application No. 8255 of 1996, setting aside the impugned judgment and order dated 23.9.1996, passed by the Tribunal was sought to be challenged by the applicant-teacher by way of the above Letters Patent Appeal No. 1569 of 1998, which is barred by the period of limitation by 112 days. Therefore, the present appliation is filed for condoning the gross delay of 112 days.
4. Learned counsel, Shri Yagnik, appearing for Shri Kogje for the applicant-petitioner, submitted that the applicant-teacher is suffering since last 26 years and because of the result of the petition filed by the respondent-trust and the school management, he had lost his balance of mind and, initially, he had decided not to challenge the order of the learned Single Judge of this Court by way of Letters Patent Appeal. But, later on, when he had recovered, then he decided to challenge the order of the learned Single Judge before this Court, therefore, he filed the Letters Patent Appeal without wasting further time. He, therefore, submitted that the delay of 112 days in filing the appeal be condoned. Mr. Yagnik has drawn our attention to the averments made in paragraphs, 2, 3 and 4 of the application for condoning the delay of 112 days, which we would like to reproduce, which is as under :-
“2. The petitioner submits that upon receipt of the orders of this Hon’ble Court, the petitioner had given up all hopes and in fact petitioner had lost mental balance as a result of which the petitioner could not decide as to whether the petitioner should challenge the orders of this Hon’ble Court by filing Letters Patent Appeal. The petitioner submits that after passing of the time, the petitioner could recover and under the advice of petitioner’s well-wishers the petitioner made attempts to file the present Letters Patent Appeal. The petitioner, thereafter, had to decide upon engaging Advocate for filing of the Letters Patent Appeal which also took considerable time and therefore, delay has occasioned in filing the Letters Patent Appeal.
3. The petitioner submits that judgment was passed on 18/6/98. The petitioner applied for certified copy on 19/6/98 and the certified copy was ready for delivery on 5/8/98 whereas the petitioner has filed the Letters Patent Appeal on 24/12/1998 and therefore, delay of 112 days has occurred in filing the Letters Patent Appeal.
4. The peititoner submits that though at one point of time the petitioner had given up the challenge to the impugned decision, since considerable rights are involved, the petitioner has concluded to pursue the same by challenging the impugned decision. Therefore, the delay that has occurred in filing the Letters Patent Appeal is required to be construed liberally and therefore be condoned.”
5. On the averments made on oath in this application by the applicant, Division Bench of this Court, by its order dated 6.5.1999, ordered to issue Rule, making it returnable on 12th July, 1999. However, due to some or the other reasons, this application could not be heard and finally disposed of till today. Be that as it may.
6. In response to the notice of Rule issued on this application, reply affidavit is filed on behalf of the respondents and they have strongly opposed the contention on the point of delay on the ground that the averments made in the application are absolutely vague and no cause much less sufficient cause is shown for condoning such a gross delay of 112 days. Shri C.K. Divakaran appearing for Shri A.K. Clerk for the respondents submitted that, looking to the charges which were found to be proved in domestic inquiry against the applicant, who was none else but a teacher who misbehaved with girls of the school, delay of 112 days should not be condoned. He submitted that, it was only an afterthought on the part of the applicant to challenge the same by way of the above appeal, which was already barred by limitation by a period of 112 days. Therefore, he has made vague averments in the application that he lost balance of his mind, which is absolutely false. He further submitted that, in support of the averments made in this application that he had lost his balance of mind, no medical certificate is produced; no details are given as medical certificate is produced, no details are given from what period to what period he lost his balance of mind and under whose treatment, and when he recovered. In absence of all these details, delay should not be condoned.
7. Having heard the learned counsel for the parties for a considerable time and having carefully gone through the averments made in this application as well as the reply affidavit, we are of the considered opinion that the applicant has miserably failed to make out a case for condoning gross delay of 112 days. In our considered opinion, learned counsel, Shri Divakaran, for the respondents was absolutely justified in submitting that the averments made in this application are absolutely vague and no cause much less sufficient cause is shown for condoning the delay of 112 days.
8. We are conscious of the fact that we are throwing out the case of the applicant-appellant on technical ground like delay and laches. We are also conscious about the judgment of the Honourable Supreme Court in case of Mrs. Katiji v. Special Land Acquisition Officer, reported in AIR 1987 SC 1353, that substantial justice should be done, not technical one. But, keeping in mind the later judgment of the Honourable Supreme Court in case of P.K. Ramachandran v. State of Kerala, AIR 1998 SC 2276, we are of the considered opinion that, when gross delay of 112 days is not properly explained, then the delay in such type of cases should not be condoned.
9. We may make it clear that, while dismissing this application for condonation of delay, we have also gone through the reasons assigned by the learned Single Judge in allowing the writ petition filed by the respondents and we are fully convinced that, even if the appeal was within time, then also we would not have interfered with the same in Letters Patent Appeal.
10. In view of the above discussion, this Civil Application fails and is dismissed. Rule is discharged with no order as to costs.
11. Letters Patent Appeal No. 1569 of 1998 is dismissed as having become time barred and, even if it was within time, then also it was required to be dismissed as it had no substance on merits. Hence, dismissed.
12. Civil Application for stay is also dismissed as the main appeal is dismissed.