Abraham v. State — 1953 DIGILAW 130 (KER)

Judgment :- 1. This is an appeal from an order of Subramonia Iyer, J. dismissing a writ application in limine. 2. The appellant was a Superintendent in the Government Secretariate, Trivandrum. By an order dated 2nd August 1949 he was placed under suspension. By a subsequent order of 8th September 1949 he was compulsorily retired from service. The second order stated that he will be given'full pension'. The application before the learned judge was to quash these orders and for a writ of mandamus or such other directions as the Court may think it necessary for reinstating the petitioner to his former office and to reimburse him for the loss of pay and other emoluments, for the period he was kept out of it. The learned judge dismissed the application stating that the second prayer was inadmissible even if the first prayer were to be granted and that in the circumstances of the case the petitioner had no 'cause of action' against the Government with respect to the first prayer. No notice was issued to the Government before the petition was dismissed. 3. Regard being had to the facts of the case, we do not think it necessary to pronounce upon whether the learned judge was right in his view that the appellant had no cause of action or cause for complaint against the two impugned orders. Both the orders were passed before the Constitution of India came into force, but in view of the decision in this Court in Muthuswamy Ayyar Subramonia Ayyar v. State 1949 T.C. L. R. 270 it is not open to us to hold that we cannot review these orders as they were passed during the Pre-Constitution days. In 1949 T. C. L. R. 270 the Full Bench held (Govinda Menon, J. doubting) that 'on proper cause being shown this Court will issue any one of the prerogative writs which a Court of record and a Superior Court will issue elsewhere under similar circumstances'. Notwithstanding this decision we do not feel persuaded to go into the merits of the appellant's case; our reason being that it is after inordinate delay that the appellant approached this Court for the redress of his grievances. 4. The Writ Petition was filed before this Court only on 29th January, 1953, when more than three years and four months had elapsed after the order for compulsory retirement was passed. 4. The Writ Petition was filed before this Court only on 29th January, 1953, when more than three years and four months had elapsed after the order for compulsory retirement was passed. The appellant's counsel sought to get over the difficulty by inviting our attention to two applications the appellant made before the Government for reconsideration of their orders, one on 12th April 1951 and the other on 16th April 1952. The petition of 12th April 1951 was dismissed on 21st May 1951 and the second petition of 16th April 1952 was dismissed on 20th December 1952. The Writ Petition was, as mentioned, filed on 29th January 1953, more than a month after the dismissal of the petition dated 16th April 1952. So far as this court is concerned the proper date to reckon whether there was delay or not is the date of the order terminating the appellant's services (8th September 1949). It was not any statutory remedy that the appellant was pursuing by means of the afore-mentioned petitions. Assuming without deciding, that the time taken by the Government for reconsideration can be taken into account, we cannot find any justification for making allowance for the period during which the second reconsideration petition was pending. To hold otherwise would be to allow an aggrieved person in the position of the appellant to put off his application to the High Court for relief indefinitely. The first petition for reconsideration was dismissed on 21st May 1951 and it was more than one year and eight months after that this court was moved. 5. Article 226 of the Constitution prescribes no period of limitation, but ordinarily no application under it will be entertained unless it is made soon after the right sought to be protected is infringed. No relief is ordinarily granted to a person who does not seek his remedy under the said Article with due diligence. See Muthiah Chettiar v. 1.T. Comr., A.I.R. 1951 Mad. 204, Nathamooni v. Viswanatha, AIR 1951 Mad. 250, Rajanandgaon S.S. v. Appellate Authority 1952 Nagpur Law Journal 57 and H.H. Huda v. Eikshbai 1953 Nagpur Law Journal 159. 6. No relief is ordinarily granted to a person who does not seek his remedy under the said Article with due diligence. See Muthiah Chettiar v. 1.T. Comr., A.I.R. 1951 Mad. 204, Nathamooni v. Viswanatha, AIR 1951 Mad. 250, Rajanandgaon S.S. v. Appellate Authority 1952 Nagpur Law Journal 57 and H.H. Huda v. Eikshbai 1953 Nagpur Law Journal 159. 6. In AIR 1951 Madras 250 Rajamannar C. J. (Somasundram J. concurring) said: "Though there is no specific period of limitation, it has generally been the accepted practice of this Court not to exercise the extraordinary power by way of the issue of prerogative writs when there has been a long delay since the passing of the order sought to be quashed. We, therefore, dismiss the application on this ground ". 7.In that case the delay was not more one year or at the highest not more than fifteen months. An appellate order of the Court of Small Causes dated 21-10-1948 in a House Rent Appeal was sought to be quashed by an application made to the High Court in 1949. As noticed above the application was dismissed on the ground of delay. 8. The decision in A.I.R. 1951 Madras 204 is by Rajamannar, C. J. and Panchapakesa Iyer, J. There, after enunciating the rule the Court gave relief to the party "even though the application was made about a year after the impugned order was made. Through wrong advice some time was spent in moving the Central Board of Revenue without success and it was after that the High Court was approached. 9. The Nagpur cases cited are both by Sinha, C. J. and Mudholkar, J. In the first case the delay was one year and ten days. In dismissing the petition the learned judges said: "Though no period of limitation has been prescribed for an application under Article 226 of the Constitution, yet ordinarily it must be made as soon as any threat to any right is there. Even an application in the ordinary revisional jurisdiction of this Court has got to be made within 45 days of the order moved against. Even an application in the ordinary revisional jurisdiction of this Court has got to be made within 45 days of the order moved against. We would therefore in the ordinary circumstances adhere to that rule, viz., that if an application is not made within 45 days of the order impugned, it shall be deemed not to have been made with due diligence, and any applicant moving the High Court beyond that time will have the burden on him of showing that in spite of due diligence the Court could tot have been moved earlier." 10. In the latter case the petition was made 85 days after the impugned order was passed; still it was dismissed as belated. Referring to the earlier case and in explaining the principle of that decision it was said: "We would make it clear that we have not prescribed a period of limitation at all. What we have laid down in that case is that a petition under Article 226 of the Constitution should be made by the party injured with due diligence, that is to say, as soon after the occasion for seeking redress from this Court arises. If a person delays unnecessarily the making of a petition to this Court, then his petition is likely to be thrown out on that ground alone. The principle which we have enunciated in this case is not a new one. It is followed in England and has been followed by this Court in several other cases. No doubt, under Article 226 of the Constitution, wide and untrammeled powers have been given to this Court, but those powers are in the discretion of the Court; and when exercising the discretion committed to the Court, and particularly so when the discretion is a very wide one, the Court must necessarily set some limits to the exercise of that discretion. These limits are certainly not inflexible but they can be altered according to the circumstances of a particular case. We have therefore stated in substance in that case that if a petition is made within 45 days of the order impugned, we would presume that it has been made with due diligence. These limits are certainly not inflexible but they can be altered according to the circumstances of a particular case. We have therefore stated in substance in that case that if a petition is made within 45 days of the order impugned, we would presume that it has been made with due diligence. If, however, it is not made within this period, then we would not presume that it has been made with due diligence and it would be for the petitioner to explain the circumstances which caused the delay in making the petition. This is the rule which we have laid down in that case...... We would also like to reiterate that where a special law has been framed with the particular idea of expediting the disposal of a matter, we think it imperative on every party who is aggrieved by the order passed under such a law to approach this Court without undue delay. It seems to us that the period of 45 days, from which would be deducted the time taken up in obtaining a copy of the impugned order, is sufficient for any person who is aggrieved by the order to come up to this Court, But apart from that, if there is any further delay, then he has got to explain it. We would, however, make it clear that this is not a rule of limitation, but only a rule which raises a certain presumption and further that it is meant to apply only to petitions where the main relief sought is quashing an' order of an inferior tribunal." ? 11. We do not consider it necessary that we should in this Court insist on any definite period. Whether there is delay or not must be decided with respect to the facts of each particular case. We are not now dealing with a case under Art. 226, but with one in which interference is, if at all, possible only under the inherent jurisdiction of the Court. We do not however think that different considerations should apply to the two classes of cases; indeed in the two cases in A.I.R. 1951 Madras cited above, the impugned orders were both Pre-Constitution orders. 12. We do not however think that different considerations should apply to the two classes of cases; indeed in the two cases in A.I.R. 1951 Madras cited above, the impugned orders were both Pre-Constitution orders. 12. In this case we hold that even if the time taken up by the first a reconsideration petition should be left out of count there would be no justification to treat the delay from 21st May 1951 to the date of the Writ Petition in the same light. It was therefore after inordinate delay that the appellant moved this court for redress. We accordingly concur in the order appealed from dismissing the appellant's petition, but as explained above our reasons are different from those on which the learned judge founded his order. The appeal will stand dismissed with costs, Advocate's fee Rs. 50/-. 13. At the conclusion of the argument the appellant's counsel made a request that in case we dismiss the appeal on the preliminary point we should grant leave to prefer an appeal to the Supreme Court. We do not consider this to be a fit case for appeal. No leave is therefore granted. Orders accordingly. Dismissed.