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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