Mohan Prasad Singh v. State of Bihar — 1999 DIGILAW 763 (PAT)

A.K. GANGULY, J.: - Both these writ petitions were heard at considerable length at the admission stage as the same points are involved and as such both the writ petitions will be governed by this judgment. 2. In both the writ petitions the subject matter of challenge is an order dated 18.8.1988 passed by the District Magistrate-cum-administrator (respondent no. 3) terminating the services of the petitioners. The petitioner in C.W.J.C. No. 8438 of 1998 was appointed a Typist and the petitioner in C.W.J.C. No. 10751 of 1998 was appointed a Peon. Both those orders of termination have been challenged by filing these two writ petitions in 1998. Objection has been raised on the ground of delay by the learned counsel for the respondents but the said objection has to be considered in the context of the facts which are stated hereunder: 3. Challenging the same order passed against other employees of the Bank by the same authority, a writ petition was filed by one Narmadeshwar Singh and others in C.W.J.C. No. 8373 of 1988. A Single Bench of this Court by a detailed judgment dated 27.4.1995 quashed the same order on various grounds indicated in the said judgment. Against the said judgment of the Single Judge, an appeal was filed being L.P.A. No. 464 of 1995. The said appeal was also dismissed with cost by a Division Bench of this Court consisting of Hon'ble the Chief Justice Mr. D.P. Wadhwa (as His Lordship then was) and Hon'ble Mr. Justice B.N. Agrawal. Against the said judgment of the Division Bench, an S.L.P. was filed and the said S.L.P. was also dismissed by the Hon'ble Supreme Court by a detailed judgment dated 5.8.1998. Thereafter an attempt was also made to review an order of the Hon'ble Supreme Court by filing a review petition. The Hon'ble Supreme Court by its order dated 25.10.1998 rejected the review application. 4. From the aforesaid narration of facts, it is clear that the same impugned order of termination of services in respect of other co-employees of the same Bank, namely, Madhepura-Supaul Central Co-operative Bank Limited (hereinafter called the said Bank) has been quashed on merits by this Court and the same has been affirmed upto the Hon'ble Supreme Court. 4. From the aforesaid narration of facts, it is clear that the same impugned order of termination of services in respect of other co-employees of the same Bank, namely, Madhepura-Supaul Central Co-operative Bank Limited (hereinafter called the said Bank) has been quashed on merits by this Court and the same has been affirmed upto the Hon'ble Supreme Court. There is virtually no difference between the impugned orders which have been challenged by the petitioners in these two writ petitions and the impugned order witch has been quashed on merits by this Court and which has been, as stated above, affirmed upto the Hon'ble Supreme Court. The difference is merely in the name of the employees and about their designation. Apart from that there is no other difference. It is passed by the same authority and on the same date and in respect of the same bank and no separate reason was assigned by respondent no. 3 in passing the present impugned orders. 5. In paragraph 55 of C.W.J.C No. 8438 of 1998 and in paragraph 66 of C.W.J.C. 10751 of 1998 it has been asserted by the petitioners that the case of these petitioners is same as the case of the petitioners in the previous writ petition and all of them were appointed in the same transaction. In the counter affidavit filed by the respondent Bank dealing with the said paragraph these facts have not been challenged but an objection has been raised that the case of the petitioners is hopelessly time barred and that the Bank is going through financial crisis and as such the case of the petitioners should not be entertained. 6. It may also be mentioned in this connection that apart from the petitioners in C.W.J.C. N. 8373 of 1988 filed by Narmadeshwar Singh, another writ petition was also filed by the employees of the said Bank aggrieved by the same order. The same was numbered as C.W.J.C. No. 8810 of 1988 (Ranjit Singh and others). That writ petition has also been allowed following the judgment in the case of Narmadeshwar Singh (Supra) which has been affirmed by the Hon'ble Supreme Court. 7. Therefore, on merits similar orders passed on similar terms by the same authority and in respect of the same Bank have been quashed by a Court of Law by a judgment which has attained finality. 7. Therefore, on merits similar orders passed on similar terms by the same authority and in respect of the same Bank have been quashed by a Court of Law by a judgment which has attained finality. So on merits of the order no argument has been advanced by either of the Parties and in fact it cannot be argued for the facts indicated above. 8. But the questions which were argued before this Court by the learned counsel for the parties are as follows ;(i) Learned counsel for the petitioners submitted that following the judgment of the Hon'ble Court which has been affirmed by the Supreme Court, similar relief may be granted to these two petitioners. (ii) Learned counsel further argued that when the petitioners are aggrieved by the same impugned order which stands quashed at the instance of some of their colleagues, the petitioners should not be differently treated just because they have approached this Court belatedly; in other words learned counsel argued that the petitioners should not be made to suffer an order which has been judicially pronounced to be bad in law. (iii) If the petitioners are not granted relief by this Court because of their belated writ petition, they will be denied the protection of Article 14 of the Constitution which enjoins equal protection of law to all citizens and their fundamental right to life, which includes livelihood, under Article 21 of the Constitution will be impaired if virtually the same termination orders which have been declared illegal by the Courts, as aforesaid, are also not set aside in these two writ petitions. 9. Learned counsel for the respondents on the other hand contested the aforesaid claims advanced by the learned counsel for the petitioners and urged that the (i) petitioners have filed these writ petitions almost 10 years after the impugned order had been passed. He has further argued that (ii) it is well settled that this Court sitting in writ jurisdiction will not entertain belated claims and no worthwhile explanation has been given by the petitioners for the delay. (iii) The respondent Bank is going through a financial crisis and there are surplus employees and the said Bank is closing some of the Branches and, therefore, reinstatement at this stage of the petitioners by setting aside the impugned order of termination will impose a financial burden on the said Bank. 10. (iii) The respondent Bank is going through a financial crisis and there are surplus employees and the said Bank is closing some of the Branches and, therefore, reinstatement at this stage of the petitioners by setting aside the impugned order of termination will impose a financial burden on the said Bank. 10. Learned counsel for both parties cited some decisions in support of their contentions which this Court will discuss later. 11. The principles on which this Court exercises its jurisdiction in respect of belated claims have been indicated from time to time by various judicial pronouncements. One principle which is common in all these various judicial pronouncements is that there can be no strait jacket principle in these matters nor is there any fixed period of limitation as to when and where relief will be denied on the sole ground of delay. It has to depend upon the discretion of the Court and on consideration of facts of each case. 12. The matter has been rightly left solely on the discretion of the Court having regard to the wide language of Article 226 of the Constitution which does not prescribe any period of limitation in these matters. As discretion has been left to be exercised on equitable principles, the language of Article 226 has been deliberately kept very wide so that it is capable of being suitably exercised, having regard to the demand of justice in each case. 13. In this connection one may consider the provision for judicial review in England where for making an application for leave to review, time limit has been provided under Order 53 of the Supreme Court rules. Of course the court can, on good grounds, extend the time. But so far as our Constitution is concerned, it is uninhibited by such rules. Possibly the founding fathers of the Constitution thought of the wide spread poverty, illiteracy and the lack of awareness of legal right amongst the litigating public of this country and advisedly did not indicate a time limit. But so far as our Constitution is concerned, it is uninhibited by such rules. Possibly the founding fathers of the Constitution thought of the wide spread poverty, illiteracy and the lack of awareness of legal right amongst the litigating public of this country and advisedly did not indicate a time limit. So our system of judicial review under the Constitution is more elastic and flexible and that may be one of the reasons why the Constitution Bench of the Supreme Court in Escort's case, reported in (1986) 1 S.C.C. page 264, observed that in India Constitutional Law has forged much ahead of the law in England as in India we are untrammeled by technical rules. 14. The principles on which such discretion is to be exercised have been indicated as early as in 1874 when Sir Barnes Peacock in Lindsay Petroleum Co. Vs. Prosper Arm Strong Hurd, reported in (1874) 5 Privy Council, page 221 at page 229, sitting in the Judicial Committee of the Privy Council, laid down the same with such felicity of expression that this Court can do nothing but quote the same: "Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief which otherwise would be just is founded upon mere delay that delay of course not amounting to a bar by any statute of limitations the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as relates to the remedy." (emphasis supplied). 15. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as relates to the remedy." (emphasis supplied). 15. About the said exposition of principle a few years later, Lord Blackburn, again sitting in the Privy Council, and referring to the aforesaid passage in Hurd (Supra) observed in the case of Emile Erlanger and others Vs. The New Sombrero Phosphate Company and others, reported in 1877(3) Appeal cases page 1218 at page 1279 "I have looked in vain for any authority which gives a more distinct and definite rule than this". 16. In a very well considered Full Bench judgment of the erstwhile Nagpur High Court in the case of Krishna Rajeshwar Vs. The Chief Secretary to the M.P. Government, Police Department, Nagpur and another reported in AIR 1954 Nagpur Page 151, Justice Bhutt speaking for the Full Bench laid down the same principles very lucidly in paragraph 28 of the judgment. His Lordship was pleased to observe while referring to Article 226 of the Constitution that wide and un-trammeled are its power. The Court acting under Article 226 of the Constitution cannot be precluded from rectifying a grave injustice simply because the petitioner could have not moved in the matter earlier. According to the learned judge the object of the jurisdiction in such cases is the removal of grave and patent errors which infringe on human rights and unless by undue delay or laches inconsistent legal or equitable considerations have arisen which judicial conscience can not with equanimity ignore. justice should not be denied simply because the Court has not been moved soon after the injury was caused or threatened and the delay has not been ex-plained. (emphasis added) 17. This Court is entirely in agreement with the aforesaid proposition. 18. The apex Court in our country has also expressly approved the aforesaid elucidation of the principle by Sir Barnes Peacock in the Constitution Bench Judgment in the case of the Moon Mills Limited Vs. M.R. Meher, President, Industrial Court, Bombay and others reported in AIR 1967 S.C. page 1450 by quoting the aforesaid passage in Hurd (Supra) in paragraph 6 at page 1454 of the said judgment. 19. M.R. Meher, President, Industrial Court, Bombay and others reported in AIR 1967 S.C. page 1450 by quoting the aforesaid passage in Hurd (Supra) in paragraph 6 at page 1454 of the said judgment. 19. After the Judicature Act 1973, there is hardly any division in England between the Court of Equity and Common Law and it has been held by Lord Cairns in PUGH Vs. Heath reported in 1882(7) Appeal Cases page 235 at page 237 that the Court "is now not a court of law or a court of equity. It is a court of complete jurisdiction." 20. Similarly the apex Court has also declared in the case of Delhi Development Authority Vs. Skipper Construction company (p) Limited and another reported in (1996) 4 S.C.C. page 622 that in India the Courts are not only the courts of law but also the courts of equity. 21. Therefore, those principles formulated by Sir Barnes Peacock as governing the doctrine of laches in courts of equity apply with full force to this Court exercising the writ jurisdiction under the Constitution of India. 22. The question can be also considered from another angle. Under Article 226, power is conferred on High Court to issue different writs mentioned therein for achieving twin objectives-one is for the enforcement of any of the right conferred by Part III and the other is for 'any other purpose'. But it is well settled that when there is an infringement of fundamental right, as in this case, the Court will liberally consider the objection on the ground of delay and laches. 23. Thus it said that the power under Article 226 of the Constitution has been conferred in very wide terms and to secure the aforesaid two objectives. This makes the jurisdiction of the High Court under Article 226 of the Constitution much wider than the jurisdiction conferred on the Hon'ble Supreme Court under Article 32 of the Constitution. 24. Even then in a proceeding under Article 32 of the Constitution, the Constitution Bench of the Supreme Court in the case of Ramchandra Shankar Deodhar and others Vs. The State of Maharashtra and others reported in AIR 1974 S.C. page 259 condoned the delay of about more than 10 or 12 years in filing the writ petition since the accrual of the cause of action. (see paragraph 9 of the said judgment). The State of Maharashtra and others reported in AIR 1974 S.C. page 259 condoned the delay of about more than 10 or 12 years in filing the writ petition since the accrual of the cause of action. (see paragraph 9 of the said judgment). This case was cited by the petitioners' Counsel. 25. While overruling the preliminary objection raised by the respondents on the ground of delay the Hon'ble Supreme Court affirmed the principle laid down by Hon'ble Mr. Justice Hidayatullah in the case of Tilockchand Motichand Vs. H.B. Munshi reported in AIR 1970 S.C. page 898. The principles laid down in Tilockchand Motichand (Supra) was summarised by the Constitution Bench of the Supreme Court in R.S. Deodhar (Supra) in the following words: "It may also be noted that principal on which the Court proceeded-in refusing relief to the petitioner on 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 is reasonable explanation for the delay" (emphasis, added). 26. Even though in the case of R.S. Deodhar provisional promotion have taken place but the learned Judges of the Supreme Court interfered with the same after so many years on the ground that the promotion being provisional they have not conferred any right on those promotees. However, in the instant case no such parallel rights have come into existence. So the observation of the Supreme Court in R.S. Deodhar (Supra) applies here with stronger force. In Deodhar (Supra) the apex Court concluded in paragraph 9 as follows: "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 sentinel on the quivered for protection of the fundamental rights cannot easily allow itself to be pursuaded to refuse relief solely on the jejune ground of laches, delay or the like." 27. Another judgment which has been cited by the learned counsel for the petitioners is in the case of M/s. Dehri Rohtas Light Railway Company limited Vs. District Board, Bhojpur and others reported in (1992) 2 S.C.C. page 598. In Dehri Rohtas Light Railway Company Limited (Supra) the Hon'ble Supreme Court granted relief to the appellant ignoring the objection raised on the ground of delay. District Board, Bhojpur and others reported in (1992) 2 S.C.C. page 598. In Dehri Rohtas Light Railway Company Limited (Supra) the Hon'ble Supreme Court granted relief to the appellant ignoring the objection raised on the ground of delay. In the writ petition filed in 1980 the demand notices for the period of 1953-54 to 1966-67 were challenged. The said writ petition was dismissed by the Patna High Court on 6.1.1981 in limine on the ground of delay. The Supreme Court granted the relief to the petitioner Company over ruling the aforesaid objection on the ground of delay. The reasons are stated by the apex Court in paragraph 13 of the said judgment. Excerpts from the said paragraph are set out below: "The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied 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 is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists the illegality which is manifest cannot be sustained on the sole ground of laches." (emphasis added) 28. In the said judgment the real test which has been formulated by the Supreme Court to determine delay is whether a parallel right is created in favour of the others as a result of lapse of time and the test is not to the physical running of time and where some circumstance exist justifying the condonation of delay and the illegality in the impugned order is so manifest that it cannot be sustained, the ground of laches and delay should be condoned. 29. 29. Learned counsel for the respondent Bank has also cited a number of judgments. The first judgment cited by him is in the case of Gandhi Nagar Motor Transport Society Vs. State of Bombay reported in AIR 1954 Bombay, Page 202. In the said judgment the Division Bench of the Bombay High Court observed that the only delay which the High Court will excuse in presenting a writ petition under Article 226 of the Constitution is the delay which is caused by the petitioner in pursuing the legal remedy which is given to him. 30. In that case the order challenged before the Hon'ble High Court was a decision of the Government dated 15.1.1953 against the order of the Regional Transport Officer and the explanation was that the petitioner made a representation before the Government to reconsider their decision and the Minister rejected that representation. In that context the learned Judges of the Bombay High Court observed that the said representation to the Government was merely a mercy appeal and it cannot be said that the petitioner was pursuing a remedy which law gives to the petitioner. The principle enunciated there are not attracted to the facts of this case where identical orders complained of by the petitioners have been quashed on merits by the courts at the instance of some of the colleagues of the petitioners. 31. Learned counsel for the respondent Bank has also cited three judgments of the Supreme Court. They are in the cases of Kamini Kumar Das Choudhury Vs. State of West Bengal & Others reported in AIR 1972 S.C. page 2060. In that case the delay in service matter was not condoned and the Hon'ble Supreme Court observed that in a case where seriously contested questions of fact have to be decided before an order against the public servant is held to be void, such a case cannot be entertained if it is filed after inordinate delay. In the said case the Hon'ble Supreme Court made a distinction between the case in which tax is imposed under a clearly void law and in a case where seriously contested questions are to be decided. In the instant case no seriously contested question is to be decided for grant of relief to the petitioners, inasmuch as in the case in hand, the case against similar impugned orders of termination has already been decided. In the instant case no seriously contested question is to be decided for grant of relief to the petitioners, inasmuch as in the case in hand, the case against similar impugned orders of termination has already been decided. Therefore, the similar order against which the petitioners have come to this Court has already been held to be totally illegal. Therefore, the ratio in the case of Kamni Kumar Das Chaudhary (Supra) cannot be applied here. 32. The next judgment of the Supreme Court on which reliance has been placed by the learned counsel for the respondent Bank is in the case of Jagdish Narain Maltiar Vs. State of Bihar and others reported in AIR 1973 S.C. page 1343. In that case the petitioner on being dismissed from service took three years time in sending memorials to the Government. The said remedy was not a legal remedy and as such the Supreme Court held that the High Court was justified in rejecting the writ petition. A few facts in Jagdish Narain (Supra) may be noted. On 28.9.1958 Jagdish Narain filed a writ petition in Patna High Court but that was dismissed on 21.1.1960 in view of the Government stand that Jagdish Narain was not removed for his conduct but his services were temporary and he was terminated by an order of discharge. Then Jagdish Narain filed several representations to the Government and then on September 23rd, 1966 Jagdish Narain filed a writ petition in question but the High Court again dismissed it summarily on 27.9.1966 on the ground the same was filed after abnormal delay. Therefore, eight years after 1958 the writ petition was filed in 1966. 33. But the case of Jagdish Narain (Supra) also is factually distinguishable from the instant case in which there already exists the final judicial determination to the effect that identical orders of termination are bad in law. 34. The last decision of the Supreme Court which has been cited by the learned counsel for the respondent Bank is in the case of S.N. Karkhanis and others Vs. Union of India and others reported in AIR 1974 S.C. page 2302. In that case the learned judges of the Supreme Court held in paragraph 3 that in the facts of that case there was no inordinate delay and the objection taken that the writ petition was presented after over ten years is not sustainable. Union of India and others reported in AIR 1974 S.C. page 2302. In that case the learned judges of the Supreme Court held in paragraph 3 that in the facts of that case there was no inordinate delay and the objection taken that the writ petition was presented after over ten years is not sustainable. In the facts of that case the learned Judges of the Supreme Court came to the conclusion that as the proposals set out in the letter dated 26.1.1960 were treated to be provisional and the petitioners were not entitled to come to this court earlier till the proposal was made final in April, 1970 and as such the preliminary objection was not sustained. This Court fails to understand how can the said decision in the case of S.N. Karkhanis (Supra) be of any assistance to the respondent Bank. 35. This Court, however observes that in view of the authoritative pronouncement by the Constitution Bench of the Supreme Court in 1974 in the case of R.S. Deodhar (Supra) the two previous judgments of smaller Bench in the case of Jagdish Narain (Supra) and Kamini Kumar Das Chaudhary (Supra) must be read subject to the ratio of the subsequent Constitution Bench in R.S. Deodhar (Supra). Apart from that factually also, as pointed out above he decisions in Jagdish Narain Malti, (Supra) and Kamini Kumar Das (Supra) are distinguishable. 36. Learned counsel for the respondent Bank has also relied on two Single Bench judgment of this Court in the case of Subh Chandra Jha and others Vs. The State of Bihar and others reported in 1999(2) B.L.J., page 76 and the case of Shyam Chandra Singh Vs. Union of India and others reported in 1999 (2) B.L.J. page 89. In the first case the petitioner claimed for grant of status and the pay scale of Malaria Inspector 18 years after the accrual of cause of action. In that case apart from the ground of delay the learned judge observed that on merits also the petitioner had no case and the learned judge observed that the petitioners were rightly denied the pay scale of Malaria Inspector as they did not possess the requisite educational qualification. Therefore, the case of the petitioner was dismissed primarily on merits. That distinguishes the case of Subh Chandra Jha and others (Supra) from the present case. Therefore, the case of the petitioner was dismissed primarily on merits. That distinguishes the case of Subh Chandra Jha and others (Supra) from the present case. In the case of Shyam Chandra Singh (Supra) the writ petitioner approached this Court after 19 years. In this case also the case of the petitioner for claiming disability pension was rejected on merits. It appears from paragraphs 9 and 10 that the respondent’s finding that the petitioner is not entitled to disability pension as his disability is not attributable to military service was upheld by the Court. Therefore, as the petitioner had no case on merits, the Court refused to interfere with the writ petition which was filed 19 years after the accrual of the cause of action. So both on the ground of unexplained delay as also on the ground of merits the petitioner had no case. 37. It is obvious that the facts of the aforesaid cases cannot be applied the present case. Here on merits the challenges against similar impugned orders of termination have been finally upheld by Courts. 38. Here of course the petitioners have not given any acceptable explanation for the delay. But from the discussions made above, the reasons why this Court is inclined to condone the delay, is that in this case, at the instance of the colleagues of the petitioners, challenge to similar impugned orders on merits has been accepted by the- Court finally. Therefore, the impugned order cannot be upheld on merits. This feature of the case disturbs the conscience of this Court to a great extent. This Court has considered this aspect very carefully and comes to the conclusion that in a similar case when the colleagues of the petitioners got relief from the Court against the order of their termination of service and when the petitioners challenge the same order, the petitioners cannot possibly be told that the court will reject their case in limine as they have approached the Court after a considerable lapse of time even though for such delay no third party right or parallel rights have come into existence. In my considered opinion if however, the Court takes this attitude that would be in violation of the equality clause under Article 14 of the Constitution of India. In my considered opinion if however, the Court takes this attitude that would be in violation of the equality clause under Article 14 of the Constitution of India. This Court cannot uphold the impugned orders, when identical orders have been declared illegal, just on the ground of delay even though no one has suffered for the petitioner's belated approach to this Court. 39. Here the question is one of breach of fundamental rights of the petitioners and in the matters of infringement of fundamental rights under Articles 14 and 21 of the Constitution, the Courts have always been liberal in condoning the grounds of delay. 40. The other ground raised by the learned counsel for the respondent Bank is that if the impugned order is set aside and the petitioners are reinstated that will cause financial burden on the Bank is not to be accepted by this Court. The Supreme Court has observed in the case of All India Imam Organization and others Vs. Union of India and others reported in (1993) 3 S.C.C. page 584 that for financial crisis fundamental rights cannot be defeated. 41. Considering these facts, this Court overrules the objection raised by the respondents on the question of delay and since the case on merits has already been considered by this Court in other proceedings at the instance of employees of the said Bank, this Court quashes the impugned orders following its judgment in C.W.J.C. No. 8373 of 1988. Thus the impugned orders at Annexure-4 are quashed in both writ petitions. But as the petitioners have delayed in filing the writ petitions, they will not get anything by way of back wages nor will they get the benefit of continuity or seniority in service as a result of the quashing of the impugned orders. The petitioners' appointment will be treated as the appointment afresh and their seniority shall be counted from the date of such reappointment. The petitioners are to be re-appointed to the same posts within a period of 15 days from the date of service of this order on respondent no. 3. 42. With the above observation/direction, both the writ petitions are allowed to the extent indicated above. Annexure-4 to both the writ petitions are hereby quashed. There will be no order as to cost.