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Saturday, October 10, 2015

Doctrine of Delay & Latches not entitled for any hearing = The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim “Deo gratias” – ‘thanks to God’. 28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present. 29. In view of our aforesaid analysis the appeals are allowed and the judgment and orders passed by the High Court are set aside. There shall be no order as to costs.


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS.  8390-8391 OF 2015
                    (@ S.L.P.(C) NOS.11203-11204 OF 2014)


State of Jammu & Kashmir                ...  Appellant

                                Versus

R.K. Zalpuri and others                       ...  Respondent




                               J U D G M E N T



Dipak Misra, J.

      The first respondent was served with a Memorandum of Charges  on  16th
September, 1996, which was unequivocally refuted by him.   The  Disciplinary
Authority considering  the  denial  of  charges,  on  12th  November,  1996,
appointed an Inquiry Officer, who after conducting the enquiry, submitted  a
report to the Disciplinary Authority which  contained  a  finding  that  the
employee had misappropriated a sum of Rs.2,68,317.00.  After the report  was
submitted, the Disciplinary Authority issued a  show  cause  notice  on  4th
June, 1999, whereby it  had  proposed  to  terminate  the  services  of  the
employee.
2. The first respondent submitted the reply and the  Disciplinary  Authority
considering the explanation passed an order of dismissal on  6th  September,
1999 and he stood dismissed from that day.   The order passed by  the  State
Government dismissing the employee read as follows:-

“Whereas the commissioner of Inquiries  has  submitted  his  report  to  the
Government and has found him guilty of having embezzled Government money  to
the tune of Rs.2,68,317.00 (Rupees two lacs,  sixty  eight  thousand,  three
hundred and seventeen only) besides being  responsible  for  financial  mis-
conduct and complete lack of devotion to duties.

Whereas,  after  considering  the  report  of  the   inquiry   officer   the
involvement of Shri R.K. Zalpur, Senior Assistant, has been  established  in
the embezzlement of Government money as indicated above  in  the  office  of
Resident Commissioner, J&K, New Delhi.

Whereas after  accepting  the  report  of  the  inquiry  officer  and  after
establishing his involvement, the Government  has  decided  to  take  action
against Shri R.K. Zalpuri, Sr. Assistant in terms of clause (viii)  of  rule
30 of  the  J&K  (Classification  Control  and  Appeal)  Rules,  1956  which
provides dismissal from service.

Whereas,  Shri  R.K.  Zalpuri  was  informed  about  the  decision  of   the
Government vide communication No. GAD (Admn.) TA  3391-IV  dated  04.06.1999
and was called upon under rules to show cause as to why the proposed  action
is not taken against him.

Whereas Shri R.K. Zalpuri has furnished his reply to the notice served  upon
him, which has been considered by the Government and no merit was  found  in
he same;

Now, therefore, Shri R.K. Zalpur, Senior Assistant, in  the  office  of  the
Resident Commissioner, J&K, New Delhi is hereby  dismissed  from  Government
service with immediate effect in terms of clause VIII  of  Rule  30  of  J&K
Civil Service (CCA) Rules, 1956.”


3.    After the said order was passed, the first respondent did  not  prefer
any departmental appeal nor did  he  approach  any  superior  authority  for
redressal of his grievance.  However, on 18th February,  2006,  he  filed  a
writ petition (S.W.P. No.352 of 2006) before the High Court challenging  his
dismissal from service.  Various assertions were made in the  writ  petition
with regard to the defects in conducting of the inquiry  including  the  one
that there had been violation of Rule 34 of  the  Jammu  and  Kashmir  Civil
Services (Classification, Control & Appeal) Rules,  1956,  for  he  had  not
been afforded an opportunity of hearing in the manner provided in  the  said
Rules.  In the writ petition nothing was stated what he had done  from  1999
to 2006.

4.    The State Government filed a counter affidavit wherein it  had  raised
a preliminary objection relating to delay and laches.  The  stand  taken  by
the State Government in the counter  affidavit  as  regards  the  delay  and
laches is as follows:-
“That, the writ petition instituted  by  the  petitioner  is  liable  to  be
dismissed  at  its  threshold,  inasmuch  as  the  same  is  suffering  from
inordinate and unexplainable delay and  latches.   By  virtue  of  the  writ
petition instituted in the year 2006, the petitioner has come to  the  court
to challenge an order passed  by  the  answering  respondents  way  back  on
06.09.1999.  It  is  submitted  that  pursuant  to  the  issuance  of  order
impugned, the petitioner chose to  sleep  over  the  matter  and  acquiesced
whatever rights assumed to be available to him.”

5.    After putting forth the  submission  with  regard  to  the  delay  and
laches, the State Government defended its action  by  asseverating  many  an
aspect, which need not be adverted to.
6.    The learned Single Judge vide order dated 14th May, 2010, opined  that
the show cause notice issued to the employee was not  accompanied  with  the
copies of the proceedings as envisaged  under  Rule  34  of  the  Jammu  and
Kashmir Civil Services (Classification, Control & Appeal)  Rules,  1956  and
that did tantamount to denial of reasonable opportunity  to  the  delinquent
official, as has been held by the Constitution  Bench  in  E.C.I.L.  vs.  B.
Karunakar[1].  On that singular ground, he allowed  the  writ  petition  and
quashed the order of dismissal.
7.     Being  grieved  by  the  aforesaid  decision,  the  State  Government
preferred Letters Patent Appeal No.102 of  2012.   In  the  grounds  of  the
Letters Patent Appeal, the State had clearly asserted:-
“That the learned Single Judge, with great  respects,  has  not  appreciated
the specific  and  important  averment  made  by  the  appellants  that  the
respondent had slept over the matter for quite seven years and  has  knocked
the door of the Hon’ble Court after a gap of seven  years,  thus  there  was
clear unexplained huge delay and laches in filing  the  writ  petition,  the
same was liable to be dismissed, however, the learned Single  Judge  without
returning any finding on this vital issue has  allowed  the  writ  petition,
therefore, the same is liable to be set aside on this ground along.”

8.    The Division Bench that heard the Letters  Patent  Appeal  recorded  a
singular submission on behalf of the learned counsel  for  the  State  which
was to the effect that it had  been  left  without  any  remedy  to  proceed
against the delinquent government servant and, therefore, the  order  passed
by the  Learned  Single  Judge  needed  modification.   The  Division  Bench
dealing with the said submission opined thus:-
“Learned Single Judge has quashed  Respondent’s  dismissal  from  Government
service on the ground that copy of the proceedings prepared  under  Rule  33
was not supplied to the  Respondent  before  passing  final  orders  on  the
provisional conclusion reached at on the basis of the inquiry to show  cause
as to why the proposed penalty be not imposed on him.

Although the Appellants’ dismissal was set aside by the Court  finding  non-
compliance of the provisions of the Rule 34 of the Jammu and  Kashmir  Civil
Service (Classification, Control and Appeal) Rules, 1956, yet it  cannot  be
said that the Appellants have  been  left  without  any  remedy  to  proceed
against the delinquent employee on complying with the  requirement  of  Rule
34.

The Learned State counsel’s contention that the Appellants  have  been  left
without any remedy to proceed against the respondent may not, therefore,  be
a correct proposition of law.

However, to set the records  straight  and  allay,  the  State  Government’s
apprehension that they were without any remedy, we dispose  of  this  appeal
by providing that quashing of Respondent’s dismissal  will  not  operate  as
impediment for the Appellants to proceed  against  the  Respondent  for  his
misconduct after complying with the requirement of Rule 34 of the Jammu  and
Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956.”

9.    It is apt to note here that an application  for  review  being  Review
(LPA) No.03 of 2012 was filed wherein a stand was taken pertaining to  delay
which we think should be reproduced.  It reads as under:-
“The appellants filed detailed reply to  the  maintainability  of  the  said
writ petition.  In the objection, it was  specifically  pleaded  before  the
writ court that the Respondent had  slept  over  the  matter  and  the  writ
petition is suffering from inordinate  and  unexplained  delay  and  laches,
therefore, the writ petition filed  in  the  year  2006  against  the  order
passed way back in 1999 is liable to be dismissed.”

10.    The  Division  Bench  considered  the  application  for  review   and
ultimately dismissed the same on the  ground  that  there  was  no  palpable
error warranting review of the order.  The principal  order  and  the  order
passed in the review are the  subject  matters  of  assail  in  the  present
appeals.
11.   We have heard Mr. Sunil Fernandes, learned counsel for the  appellant-
State and Mr. Gagan Gupta, learned counsel for the first respondent.
12.   On a perusal of the factual exposition, it is  quite  vivid  that  the
first respondent was dismissed  from  service  on                        6th
September, 1999, and  he  preferred  the  writ  petition  on            18th
February, 2006, after a lapse of almost five and a  half  years.   The  plea
relating to delay was specifically taken  in  the  counter  affidavit  as  a
preliminary objection, but the learned Single Judge  chose  not  to  address
the same.  The appellate-Bench has noted the  submission  and  modified  the
order and an application for review was filed with the stand that  the  plea
pertaining to delay and laches had  not  been  considered,  but  the  review
application, as we find from the record, was dismissed on  the  ground  that
the review could not be treated like an appeal in disguise.
13.   Learned counsel for the appellant-State  would  contend  that  when  a
categorical stand was taken in the counter affidavit and a  specific  stance
had been put forth in  the  intra-Court  appeal  as  is  manifest  from  the
record, the High Court should have taken into  consideration  the  same  and
not recorded a finding on a ground which was not taken  in  the  grounds  of
appeal.
14.    Learned  counsel  for  the  respondent-employee,  per  contra,  would
contend that the delay and laches cannot alone defeat the cause  of  justice
and in any case, when substantial justice has been done  this  Court  should
not  interfere  in  exercise  of  jurisdiction  under  Article  136  of  the
Constitution of India.
15.   We have noted that the High Court has  rejected  the  application  for
review on the ground that it cannot sit in  appeal  and  the  parameters  of
review  are  not  attracted.   In  this  context,  we  may  refer   to   the
Constitution Bench judgment in Shivdeo Singh and Others vs. State of  Punjab
and Others[2], wherein it has been observed that nothing in Article  226  of
the Constitution precludes a High Court from exercising the power of  review
which inheres in every court of plenary jurisdiction to prevent  miscarriage
of justice or to correct grave palpable errors committed by it.
16.   In this regard,  reference  to  Aribam  Tuleshwar  Sharma  vs.  Aribam
Pishak Sharma and Others[3], would also be apt.  In the said  case,  it  has
been held thus:-
“It is true as observed by this Court in Shivdeo Singh v. State  of  Punjab,
there is nothing in Article 226 of  the  Constitution  to  preclude  a  High
Court from exercising the power of review which inheres in  every  court  of
plenary jurisdiction to prevent miscarriage of justice or to  correct  grave
and palpable errors committed by it.  But, there are  definitive  limits  to
the exercise of the power of review.  The power of review may  be  exercised
to the discovery of new and important matter or evidence  which,  after  the
exercise of due diligence  was  not  within  the  knowledge  of  the  person
seeking the review or could not be produced by him  at  the  time  when  the
order was made; it may be exercised where some mistake or error apparent  on
the face of the record is found; it may also be exercised on  any  analogous
ground.  But, it may not be exercised on the ground that  the  decision  was
erroneous on merits.  That would be the province of a court  of  appeal.   A
power of review is not to  be  confused  with  appellate  powers  which  may
enable an appellate Court to correct all manner or errors committed  by  the
subordinate Court.”

17.   In M/s. Thungabhadra Industries Ltd.  vs.  The  Government  of  Andhra
Pradesh represented by the Deputy Commissioner of Commercial Taxes[4],  this
Court while discussing about the concept of review, has ruled that:-
“a review is by  no  means  an  appeal  in  disguise  whereby  an  erroneous
decision is reheard and corrected, but lies only for patent  error.   We  do
not consider that this furnishes a suitable occasion for dealing  with  this
difference exhaustively or in any great detail, but it would suffice for  us
to say that where without any elaborate argument  one  could  point  to  the
error and say here is a substantial point of law which  stares  one  in  the
face, and there could reasonably be no two opinions, entertained  about  it,
a clear case of error apparent on the face  of  the  record  would  be  made
out”.

18.   Almost fifty-five years back, in Satyanarayan Laxminarayan  Hegde  vs.
Mallikarjun Bhavanappa Tirumale[5],  it was laid down that:-
 “an error which has to be established by a long-drawn process of  reasoning
on points where there may conceivably be two opinions can hardly be said  to
be an error apparent on the face of the record.  Where an alleged  error  is
far  from  self-evident  and  if  it  can  be  established,  it  has  to  be
established by lengthy and complicated arguments and such  an  error  cannot
be cured by a writ of certiorari according to the rule governing the  powers
of the superior court to issue such a writ”.

19.   We have referred to  the  aforesaid  authorities  as  we  are  of  the
convinced opinion that in the present case, there was a  manifest  error  by
the High Court, for it had really not taken note of  the  stand  and  stance
that was eloquently put by the State as regards the delay and  laches.   The
averments in the writ petition were absolutely silent and nothing  had  been
spelt out why the delay had occurred.  The Single Judge, as  stated  earlier
had chosen not to address the said issue.    The Division  Bench  in  appeal
addressed the submission, totally being oblivious of the  ground  pertaining
to delay and  laches  clearly  stated  in  the  memorandum  of  appeal,  and
modified the order passed by the Learned Single Judge as  if  that  was  the
sole submission.  It  needs  no  special  emphasis  to  state  that  in  the
obtaining factual  matrix,  the  application  for  review  did  not  require
delving deep into the factual matrix to find out the error.  It was  not  an
exercise of an appellate jurisdiction as is understood in law.   It  can  be
stated with certitude that it was a palpable error, for the principal  stand
of  the  State  was  not  addressed  to  and  definitely  it   had   immense
significance and hence, the same deserved to be  addressed  to.   Therefore,
we are compelled to think that the order required review for the purpose  of
consideration of the impact of delay  and  laches  in  preferring  the  writ
petition.   Be  that  as  it  may,  we  shall  proceed  to  deal  with   the
repercussions of delay and laches, as we are of the considered opinion  that
the same deserves to be addressed to in the present case.
20.   Having stated thus, it is useful to refer to a passage from  City  and
Industrial Development  Corporation  vs.  Dosu  Aardeshir  Bhiwandiwala  and
Others[6],  wherein  this  Court  while  dwelling  upon  jurisdiction  under
Article 226 of the Constitution, has expressed thus:-
“The Court while exercising its jurisdiction  under  Article  226  is  duty-
bound to consider whether:

adjudication of writ petition involves any complex  and  disputed  questions
of facts and whether they can be satisfactorily resolved;

the petition reveals all material facts;

the petitioner has any alternative or effective remedy  for  the  resolution
of the dispute;

person invoking the jurisdiction is guilty of unexplained delay and laches;

ex facie barred by any laws of limitation;

grant of relief is against public policy or barred by  any  valid  law;  and
host of other factors.”

21.   In this regard reference to a passage from Karnataka Power Corpn.  Ltd
Through its Chairman & Managing Director & Anr Vs. K. Thangappan and  Anr[7]
would be apposite:-
“Delay or laches is one of the factors which is to be borne in mind  by  the
High Court when they exercise their discretionary powers under  Article  226
of the Constitution. In an appropriate case the High  Court  may  refuse  to
invoke its extraordinary powers if there is such negligence or  omission  on
the part of the applicant to assert his right as taken in  conjunction  with
the lapse of time and other circumstances, causes prejudice to the  opposite
party”.

      After so stating the Court after referring to the authority  in  State
of M.P.  v.  Nandalal  Jaiswal[8]  restated  the  principle  articulated  in
earlier pronouncements, which is to the following effect:-
“the High Court in exercise of its discretion  does  not  ordinarily  assist
the tardy and the indolent or the acquiescent and the  lethargic.  If  there
is inordinate delay on the part of the petitioner  and  such  delay  is  not
satisfactorily explained, the High Court may decline to intervene and  grant
relief in exercise of its writ jurisdiction. It was stated  that  this  rule
is premised on a number of factors.  The  High  Court  does  not  ordinarily
permit a belated resort to the extraordinary remedy because it is likely  to
cause confusion and  public  inconvenience  and  bring,  in  its  train  new
injustices, and if writ jurisdiction is exercised after unreasonable  delay,
it may have the effect of inflicting not  only  hardship  and  inconvenience
but also injustice on third parties. It  was  pointed  out  that  when  writ
jurisdiction is invoked, unexplained delay  coupled  with  the  creation  of
third-party rights in the meantime is an important factor which also  weighs
with  the  High  Court  in  deciding  whether  or  not  to   exercise   such
jurisdiction”.

22.   In State of Maharashtra V Digambar[9] a three-judge  bench  laid  down
that:-
“19. Power of the High Court to  be  exercised  under  Article  226  of  the
Constitution, if is  discretionary,  its  exercise  must  be  judicious  and
reasonable, admits of no controversy. It is  for  that  reason,  a  person’s
entitlement  for  relief  from  a  High  Court  under  Article  226  of  the
Constitution, be it against the State or anybody else, even  if  is  founded
on the allegation of infringement of his legal  right,  has  to  necessarily
depend upon unblameworthy conduct of the  person  seeking  relief,  and  the
court refuses to grant the discretionary relief to such person  in  exercise
of such power, when he approaches  it  with  unclean  hands  or  blameworthy
conduct.”

23.   Recently in Chennai Metropolitan Water Supply  and  Sewerage  Board  &
Ors. Vs. T.T. Murali Babu[10], it has been ruled thus:
“Thus, the doctrine of delay  and  laches  should  not  be  lightly  brushed
aside. A writ court is required to weigh the  explanation  offered  and  the
acceptability of the same.  The  court  should  bear  in  mind  that  it  is
exercising an extraordinary and equitable jurisdiction. As a  constitutional
court  it  has  a  duty  to  protect  the  rights  of   the   citizens   but
simultaneously it is to keep itself alive  to  the  primary  principle  that
when an aggrieved person, without adequate reason, approaches the  court  at
his own leisure or pleasure, the court would be under  legal  obligation  to
scrutinise whether the lis at a belated stage should be entertained or  not.
Be it noted, delay comes in the way  of  equity.  In  certain  circumstances
delay and laches may not be  fatal  but  in  most  circumstances  inordinate
delay would only invite disaster for the litigant who knocks  at  the  doors
of the court. Delay reflects inactivity  and  inaction  on  the  part  of  a
litigant  —  a  litigant  who  has  forgotten  the  basic   norms,   namely,
“procrastination is the greatest thief of time” and  second,  law  does  not
permit one to sleep and rise like a phoenix. Delay does bring in hazard  and
causes injury to the lis”.

24.   At this juncture, we are obliged to state that the question  of  delay
and laches in all kinds of cases would not curb  or  curtail  the  power  of
writ court to exercise the discretion.  In Tukaram Kana Joshi And  Ors.  Vs.
Maharashtra Industrial Development Corporation & Ors[11] it has  been  ruled
that:-
“Delay and laches is adopted as a mode of discretion to decline exercise  of
jurisdiction to grant relief. There is another facet. The Court is  required
to exercise judicial discretion. The said discretion is dependent  on  facts
and circumstances of the cases. Delay and laches is one  of  the  facets  to
deny exercise of discretion. It is not an absolute impediment. There can  be
mitigating factors, continuity of cause action,  etc.  That  apart,  if  the
whole thing shocks the judicial conscience, then the Court  should  exercise
the discretion more so, when  no  third-party  interest  is  involved.  Thus
analysed, the petition is not hit by the doctrine of  delay  and  laches  as
the same is  not  a  constitutional  limitation,  the  cause  of  action  is
continuous and further the situation certainly shocks judicial conscience”.

And again:-
“No hard-and-fast rule can be laid down as to when  the  High  Court  should
refuse to exercise its jurisdiction in favour of a party who moves it  after
considerable delay and is otherwise guilty of  laches.  Discretion  must  be
exercised judiciously and reasonably. In the event that the  claim  made  by
the applicant is legally sustainable, delay should  be  condoned.  In  other
words, where circumstances justifying  the  conduct  exist,  the  illegality
which is manifest, cannot be sustained on the sole ground  of  laches.  When
substantial justice and technical considerations  are  pitted  against  each
other, the cause of substantial justice deserves to be  preferred,  for  the
other side cannot claim to have a vested right in the injustice being  done,
because of a non-deliberate  delay.  The  court  should  not  harm  innocent
parties if their rights have in fact emerged by delay on  the  part  of  the
petitioners.  (Vide  Durga  Prashad  v.  Chief  Controller  of  Imports  and
Exports[12], Collector (LA) v. Katiji[13], Dehri Rohtas  Light  Railway  Co.
Ltd. v. District Board, Bhojpur[14], Dayal Singh v. Union of  India[15]  and
Shankara Coop. Housing Society Ltd. v. M. Prabhakar[16].)”

25.   Be it stated, in the said case the appellants  were  deprived  of  the
legitimate dues for  decades  and  the  Maharashtra  Industrial  Development
Corporation had handed over the possession of the property belonging to  the
appellant to the City  Industrial  Development  Corporation  of  Maharashtra
without any kind of acquisition  and  grant  of  compensation.   This  court
granted relief reversing the decision of the High Court which had  dismissed
the writ petition on the ground of delay  and  non-availability  of  certain
documents. Therefore, it is clear that the principle  of  delay  and  laches
would not affect the grant of relief in all types of cases.
26.   In the case at hand, the employee was dismissed from  service  in  the
year 1999, but he chose not to avail any departmental remedy.   He  woke  up
from his slumber to knock at the doors of the High Court after  a  lapse  of
five years.  The staleness of the claim remained  stale  and  it  could  not
have been allowed to rise like a phoenix by the writ court.
27.   The grievance agitated  by  the  respondent  did  not  deserve  to  be
addressed on merits, for doctrine of delay and laches  had  already  visited
his claim like the chill of death which does not spare anyone even  the  one
who fosters the idea and nurtures the attitude that he can  sleep  to  avoid
death and eventually proclaim “Deo gratias” – ‘thanks to God’.
28.   Another aspect needs to be stated. A writ court while deciding a  writ
petition is required to remain alive to the nature  of  the  claim  and  the
unexplained delay on the part of the writ petitioner.  Stale claims are  not
to be adjudicated unless non-interference would cause grave injustice.   The
present case, need less to emphasise,  did  not  justify  adjudication.   It
deserved to be  thrown  overboard  at  the  very  threshold,  for  the  writ
petitioner had accepted the  order  of  dismissal  for  half  a  decade  and
cultivated the feeling that he could freeze time and forever remain  in  the
realm of constant present.
29.   In view of our aforesaid analysis the  appeals  are  allowed  and  the
judgment and orders passed by the High Court are set aside.  There shall  be
no order as to costs.




                                           ...............................J.
[Dipak Misra]



                                           ...............................J.
                                                   [Prafulla C. Pant]
New Delhi
October 08, 2015.

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[1]
        AIR 1994 SC 1074
[2]     AIR 1963 SC 1909,
[3]     (1979) 4 SCC 389,
[4]     AIR 1964 SC 1372
[5]     AIR 1960 SC 137
[6]     (2009) 1 SCC 168
[7]    (2006) 4 SCC 322
[8]    (1986) 4 SCC 566
[9]    (1995) 4 SCC 683
[10]   (2014) 4 SCC 108
[11]   (2013) 1 SCC 353
[12]    (1969) 1 SCC 185
[13]    (1987) 2 SCC 107
[14]    (1992) 2 SCC 598
[15]    (2003) 2 SCC 593
[16]    (2011) 5 SCC 607

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