SC rules on condonation SOP

Says govt institutions filing applications in a ‘perfunctory manner’

ISLAMABAD:

The Supreme Court has taken strong exception over the government institutions for filing applications for the condonation of delay in a perfunctory manner and not in conformity with the SOP.

This was stated in an 11-page judgment authored by Justice Muhammad Ali Mazhar on the Punjab government’s plea regarding the condonation of delay on account of 31 days’ time-barred in service matter.

The apex court noted that oftentimes cases concerning the federal and provincial governments and autonomous bodies are instituted after the lapse of the period of limitation postulated by the law and the plea taken for condoning the delay is invariably and inevitably that the time was spent in fulfilling inter-departmental procedures and seeking final instructions from the competent authority.

The judgement noted that even private sector/organisations have begun to take a similar plea, with delays being attributed to Board Resolutions, non-availability of the concerned head or officer, and delay in the law department despite the entities having full-fledged legal departments and internal law officers.

It stated that seemingly applications for condonation of delay are being filed as a routine matter while adopting a callous approach which fails to recognise that the delay cannot be condoned without the presence of sufficient cause or explaining the delay of each and every day.

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The mechanical and unpersuasive justification of administrative delays has almost become a trend which is consistently pleaded for condonation of delay through stereotypical and generalised applications, which in our point of view cannot be considered ‘sufficient cause’ or a reasonable ground in every case.

On the contrary, the ruling pointed out, that it illustrated the “recklessness and inefficiency of the concerned department” in deciding whether they want to challenge the decision in the appellate jurisdiction of the SC or not.

In the case of an individual, all decisions rest solely on him with regard to the procurement of advice for challenging the decision at a higher forum; the decision to challenge; the engagement of an advocate; supplying the relevant documents to the advocate for the preparation of the appeal/petition and then following the case religiously.

However, it noted that in the case of the government or any of its departments, the party has at its disposal the assistance of its own legal department; the help and support of the attorney general’s office, or the advocate general’s office as the case may be.

“Therefore, immediately upon receiving a copy of the judgment/order, the government departments may move for instructions rather than waiting for the lapse of the period of limitation provided for approaching the higher courts.”

At times this cavalier attitude and approach smears and smacks mala fide and leads to the belief that the appeal is intentionally being presented belatedly only as a formality in order to provide an undue advantage to the other side, rather than due to any genuine intent to challenge the judgment or order, the top court noted.

“Nothing has been articulated in the application moved for condonation of delay to ascertain where the delay was actually caused; when legal advice was received or sought; when the matter was referred to the competent authority or person in charge for the necessary instructions; who was responsible for the delay; and what punitive or disciplinary action was taken against the person who was instrumental in causing the delay,” the judgement stated.

On the face of it, the apex court added, the petition was barred by 31 days but no plausible or satisfactory explanation has been propounded by the petitioner for the delay of each and every day; except a sweeping statement that the time was consumed in the lengthy procedure and formalities, which in our view could have been followed and completed with due diligence within the period of limitation.

“It is also a well-settled exposition of law that while considering the grounds for condonation of delay, whether rational or irrational, no extraordinary clemency or compassion and/or preferential treatment may be accorded to the government department, autonomous bodies or private sector/organisations, rather their case should be dealt with uniformly and in the same manner as cases of ordinary litigants and citizens.”

It pointed out that no doubt the law favours adjudication on merits, but simultaneously one should not close their eyes or oversee another aspect of great consequence, namely that the law helps the vigilant and not the indolent

"Delay in invoking a lawful remedy by a person or entity who was sleeping over their rights may be denied. The doctrine of equality before law demands that all litigants, including the state, are accorded the same treatment and the law is administered in an even-handed manner."

"The astuteness of the law of limitation does not confer a right but ensues incapacitation after the lapse of the period allowed for enforcing some existing legal rights and it foresees the culmination of claims which have decayed by efflux of time. Under Section 3 of the Limitation Act, 1908 it is the inherent duty of the court to delve into the question of limitation, regardless of whether it is raised or not. Carelessness, intentional or obvious sluggishness, or dearth of bona fide are no reason for condonation of delay."

The court also discussed the 2003 judgment wherein SOPs were farmed.

It stated that despite this meticulous, comprehensive and all-encompassing SOP which was circulated to all concerned, the austere observance and compliance seem to have been utterly disregarded and still the applications for condonation of delay are being filed in a perfunctory manner and not in conformity with this SOP.

Subsequently, the top court directed the office to transmit a copy of its judgment to the office of the attorney general of Pakistan, advocates general of all the provinces, including Islamabad Capital Territory, as well as the federal and provincial law secretaries for information and compliance.