Ram Dault Shastri v. Rajasthan State Electricity Beard, Jaipur
1992-07-20
K.C.AGRAWAL, V.K.SINGHAL
body1992
DigiLaw.ai
SINGHAL, J. - This writ petition has been filed on 07.11.1988 and an objection was taken by this court on 9.10.1991 regarding delay in filing the writ petition. (2) Brief facts of the case are that the petitioner was posted at Pokaran and attended the duties upto 1.06.1982. It is alleged that from 2.06.1982 the petitioner went on leave because of health reasons. A telegram was sent to the petitioner on 10.06.1982. In the mean time, there was strike in the Board and ultimately the workers were allowed to be taken back. (3) The submission of the learned counsel for the petitioner is that a discrimination was caused with regard to the petitioner as in the telegram dated 10.06.1982 it was directed that the petitioner should be treated on strike since the date of absence and is to be taken on duty only after furnishing written under-taking in the prescribed form by the Board for those who remained on strike from 20.04.1981. On 15.07.1982, the Superintending Engineer has informed the Executive Engineer that in accordance with the directions of the Chief Engineer (T&C) R.S.E.B., Jaipur Shri Ram Dutt Shastri, Junior Engineer, Pokaran is not to be taken on duty till further orders are given to him. A letter was also issued to the petitioner on 5.08.1982 for submitting an explanation for absenting from duty w.e.f. 2.6.1982, without leave. (4) The submission of the petitioner is that he has been meeting the authorities from time to time and verbal assurances were given to him. On 6th May,1983, the Chief Engineer informed the petitioner that in case the petitioner does not report for duty at Pokaran, disciplinary action shall be taken against him. Reply to this notice was also sent by the petitioner. Ultimately, as per order dated 25.07.1983 the petitioner was informed that he is deferring the joining of duties at Pokaran for one pretext or the other and several notices have already been given to resume the duty and a last opportunity was given that on expiry of 10 days from the date of receipt of this notice, it shall be deemed that he has absented from duty for 8 consecutive days and his services shall stand automatically terminated under Regulation 9(h) of the R.S.E.B. Technical Workmen Service Regulations and Regulation 21 of the R.S.E.B. Employees Service Regulation.
In response to this letter, the petitioner has written that he was relieved on 5.08.1982 and has not been paid salary for one year. It was mentioned that payment thereof should be made immediately else he will be compelled to take legal action by approaching the court of law. Ultimately, the order was passed on 15.09.1983, by which the contract of service was terminated by the Board on account of being absent for more than 8 consecutive days without leave. The petitioner was advised to collect the dues from the office of Chief Engineer (T&C) RSEB, Jaipur. Representations were submitted by the petitioner on 14.12.1983 and 11.4.1986. The letters of the R.S.E.B. with regard to settlement of claim of the petitioner have also been produced along with the writ petition. (5) The petitioner has a cause of action on 15.09.1983 in accordance with the Service Rules or to approach the court at that time. The petition having been filed in 1988 after delay of more than 5 years has been explained in para 24 of the writ petition that "Since during this period the petitioners financial condition worsened day by day and as such while continuing to represent, the petitioner simultaneously had to look for the means of survival. However in view of the ever increasingjinemployment of diploma holder Engineers the petitioner could not get suitable employment. The petitioner became mentally so puzzelled and financially so weak that he could not approach this Honble Court immediately. However, he continued to represent his cause before the authorities who are primarily responsible for the protection of fundamental rights of all citizens. (6) After termination order dated 15.09.1983, the representations dated 14.12.1983 and 11.4.1986 alone have been submitted along with the writ petition. The representation dated 11.4.1986 which was addressed to the Honble Prime Minister has been denied to have been received by the respondents. The only point which has to be determined is whether the petitioner has a reasonable cause, in the facts and circumstances of the case mentioned above, for filing the writ petition after such inordinate delay.
The representation dated 11.4.1986 which was addressed to the Honble Prime Minister has been denied to have been received by the respondents. The only point which has to be determined is whether the petitioner has a reasonable cause, in the facts and circumstances of the case mentioned above, for filing the writ petition after such inordinate delay. (7) Learned counsel for the petitioner has relied upon the decision in State of M.P. vs. Bhai Lal Bhai (1), wherein the Honble Supreme Court has observed that as a general rule if there has been unreasonable delay the Court ought not ordinarily lend its aid to a party by this extra-ordinary remedy of mandamus. The provisions of Limitation Act as such were not applicable for grant of relief under Article 226 and it was held that the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for civil action for the remedy but where the remedy is more than this period, it will almost always be proper for the court to hold that it is unreasonable. This was a case arising under the M.P. Sales Tax Act where the refund was claimed on the basis of levy being violative of Article 301 and not protected by Article 304 (A) of the Constitution of India. (8) From this, it would be evident that no assistance can be sought by the petitioner of the above judgment, which rather goes against him. (9) The next case relied upon by the learned counsel for the petitioner is State of M.P. vs. Syed Qamarali (2) where the Apex Court has held that the order of dismissal has no legal existence and, therefore, the suit for recovery of pay filed 7 years after the dismissal was held not barred by limitation. The present matter does not relate for recovery of dues and from the various correspondence produced, it has been shown that the dues were tried to be paid by the respondents as early as they could have.
The present matter does not relate for recovery of dues and from the various correspondence produced, it has been shown that the dues were tried to be paid by the respondents as early as they could have. (10) Learned counsel for the petitioner has also relied upon the decision of G.P. Dowal vs. Chief Secretary, Government of U.P. (3) where the writ petition was filed after 12 years of the provisional seniority list and the department has neither finalised the seniority list nor has given any reply to the representation made by the petitioner. In the present case, there is no dispute with regard to finalisation of seniority list and the facts of this case are altogether different than that of the petitioner. (11) Reliance has also been placed on Krishan Dutt Sharma vs. State of Rajasthan (4) where the writ petition was filed after about 2 1/2 years of the order imposing penalty, which was challenged by the petitioner. In this case it was held that withholding of grade increments with cumulative effect is a major penalty and procedure under Rule 16 was held applicable. The facts of the case of the petitioner and the explanation given by him as referred to above has no co-relation with the judgment cited, hence the same is also not applicable. (12) Reliance has also been placed on the case of R.S. Devdhar vs. State of Maharashtra (5) wherein the Apex Court has held that the rule which says that the court may not enquire into belated or stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay the court must necessarily refused to entertain the petition. The question is one of discretion to be followed on the facts of each case. (13) It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay.
(13) It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. It may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and this court, which has been assigned the role of a sentinal on the qui viva for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like. (14) In this case it was informed by the Commissioner, Aurangabad Division on 18.10.1960 and the Secretary, Revenue Department in January, 1961 that the rules for recruitment to the post of Deputy Collector in the reorganized State of Bombay had not yet been unified and the petitioner continued to be governed by the rules of Ex-Hyderabad State and the rules of 30.07.1950 had no application to them. It was held by the Apex Court that the petitioners were therefore, justified in proceeding with the assumption that there were no unified rules of recruitment to the post of Deputy Collector and the promotions that were being made by the State Government were only provisional. No such information/assurance has been received by the petitioner from the respondents and therefore, this judgment has also no application in the facts and circumstances of the case. (15) The last judgment relied by the learned counsel for the petitioner is Olga Tellis vs. Bombay Municipal Corporation (6), wherein it has been held that the right to life includes right to liveli-hood and depriving of right to liveli-hood except according to just and fair principles established by law can be challenged as violative of Article 21 of the Constitution of India. There can be no dispute with the proposition with regard to the right to life. The point here for determination is the delay and for which the explanation given by the petitioner was mental disturbance, financial stringencies and representations.
There can be no dispute with the proposition with regard to the right to life. The point here for determination is the delay and for which the explanation given by the petitioner was mental disturbance, financial stringencies and representations. All the three reasons cannot be considered to be reasonable cause, inasmuch as it has not been explained as to how in 1988 when the writ petition was filed, these reasons continued or eliminated till that time. Even ignorance of law is not an excuse for not taking appropriate step within reasonable time as held by the Supreme Court in Swadeshi Cotton Company Ltd. vs. Govt. of U.P. (7). (16) In Amritlal Beri vs. Collector of Central Excise (8), it was held that mere filing of representation is not enough even where the violation of fundamental right is alleged. The petition is liable to be dismissed on the ground of inordinate delay. (17) In Naib Subedar Lachman Das vs. Union of India (9) the appellant was dismissed from service on 17.05.1966 and the writ petition was filed after 4 years. It was held that the writ petition was filed after gross delay, for which there was no satisfactory explanation. (18) Similarly, in Kamani Kumar Das Chaudhary vs. State of Bengal (10), it was held by the Apex Court that laches is a well established ground for refusal to exercise discretion to issue a writ. Indeed, the delay may make the motive of dismissed servant who may have some technical ground to urge against the dismissal, suspect. (19) In P.S. Sadashiv Swami vs. State of T&P (11) it was held by the Apex Court that a person aggrieved by an order promoting juniors over his head should approach the court at-least within 6 months or atleast a year of such promotion and the High Court can refuse to exercise its extraordinary power under Art. 226 in the case of a person who does not approach expeditiously for relief and put forward the claim and try to unsettle the settled matters. (20) Whether there is a reasonable explanation of delay has to be examined looking to the facts of each case and in the present case after the termination order was served, the petitioner has not been able to give any valid explanation as to why the writ petition was not immediately filed.
(20) Whether there is a reasonable explanation of delay has to be examined looking to the facts of each case and in the present case after the termination order was served, the petitioner has not been able to give any valid explanation as to why the writ petition was not immediately filed. Only one representation was made on 14.12.1983 and thereafter, no representation was made to the respondent. The representation is no remedy particularly where services have already been terminated and whatever the representations were made by the petitioner to the respondents were only with regard to the settlement of the claim. The representation dated 11.4.1986 has no relevance, inasmuch as it was not received by the respondents and thereafter why the petitioner remained silent over his alleged rights has not been explained. The reasons as given in para 24 of the petition regarding delay that it was because of financial stringencies and mental disturbance have no basis and cannot be relied upon. How that financial stringency was over in the year 1988 when the writ petition was filed or how the mental tension was over have also not been explained. It appears that the writ petition has been filed just to take a chance in the garb of challenging the order on the basis of challenging the rules. We are satisfied that there is no reasonable explanation and the delay in filing the writ petition has not been explained and in these circumstances, the writ petition is liable to be dismissed on the ground of laches as we refuse to exercise our discretion under Article 226 of the Constitution of India, in the facts and circumstances of the case. (21) In the result, the writ petition is dismissed only on the ground of laches. (22) Parties are left to bear their own costs.