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2010 DIGILAW 505 (GUJ)

Arvindbhai Dhanabhai Chaudhary v. S. Vaidyanathan

2010-10-13

A.L.DAVE, M.D.SHAH

body2010
JUDGMENT A.L. DAVE, J. 1. THE applicant who was working with the respondent - Bank came to be removed from service on 08.09.2004 in connection with charges of lack of probity, integrity and bonafide in his conduct as an employee of the Bank. The order of removal was passed on 08.09.2004 by the Disciplinary Authority and confirmed by the Appellate Authority by order dated 12.03.2005. 2. PARALLEL to the departmental proceedings, criminal prosecution was also lodged against the applicant and the order of removal was passed during the pendency of criminal proceedings. The applicant, therefore, approached this Court with Special Civil Application No. 1 15 of 2006 which came to be dismissed by order dated 06.09.2006. As is observed in that order the only challenge to the order of punishment raised before the learned Single Judge was that during the pendency of criminal trial, the applicant could not have been removed from service and Disciplinary Authority ought not to have proceeded with. Present application is preferred for condonation of delay of 1377 days caused in preferring Letters Patent Appeal to challenge the said order dated 06.09.2006 dismissing the petition. 3. THE application has been strongly opposed by the opponents. 4. LEARNED Advocate Ms. Shah for the applicant submitted that the applicant was pursuing his cause as per advise received by him. Later when the applicant realized that he was pursuing his cause in improper direction, by that time, much time had lapsed. Hence, there is delay in preferring the appeal. Ms. Shah submitted that the applicant was not going to be benefited in any manner by deliberately causing delay and if the track record of the applicant's case is seen, it would be clear that he was pursuing his cause before one forum or other as per advise received by him being a layman. Ms.Shah, submitted that let the appeal be decided on merits rather than shutting doors on the face of the applicant by refusing to condone delay without touching merits. During the course of arguments, she has narrated datewise events which occurred in case of the applicant. Learned Advocate Mr. Parikh while strongly opposing condonation of delay application submitted that he does not insist for day to day explanation of delayed period but a reasonable explanation can certainly be expected from the applicant. During the course of arguments, she has narrated datewise events which occurred in case of the applicant. Learned Advocate Mr. Parikh while strongly opposing condonation of delay application submitted that he does not insist for day to day explanation of delayed period but a reasonable explanation can certainly be expected from the applicant. Mr.Parikh submitted that the applicant has not explained inaction for the major part of the period of delay. Mere giving of notice or signing of a plaint would not explain delay that has occurred in preferring the appeal. He has relied on decisions in the case of C.Jacob v. Director of Geology and Mining and Anr. [ (2008) 10 SCC 115 ] and in the case of Jatunbihi w/o. Gulam Mohiyodin Sheikh and Ors. V/.s State of Gujarat [ 2000 (2) GLR 1588 ]. Mr.Parikh, therefore, submitted that the application for condonation of delay may be rejected. 5. BEFORE we proceed to consider rival submissions' merits, certain relevant dates are necessary to be recorded. (1) Order dated 06.09.2006 impugned in the appeal passed in Special Civil Application No.115 of 2006. (2) 27.09.2006 applicant came to be acquitted by the competent criminal Court of charges levelled against him. (3) 03.05.2007 the applicant issues notice to the respondent. (4) 16.05.2007 the respondent gives suitable reply. (5) 06.11.2007 the applicant claims to have signed and affirmed the plaint for Civil Suit. (6) 01.04.2008 on realizing that the suit was not filed, he addressed mercy petition/representation to the respondent, which has remained unreplied. (7) The applicant files Recovery Application under Section 33C(2) of the Industrial Disputes Act before the Central Industrial Tribunal, Ahmedabad bearing Recovery Application No.22 of 2008. (8) As preliminary objection was raised by the Bank, said Recovery Application was withdrawn with a view to prefer petition. (9) The applicant preferred Special Civil Application No. 11859 of 2009 before this Court. (10) On 22.02.2010 said petition came to be dismissed summarily on the ground that the petition was barred by principles of constructive res-judicata and the appellant cannot be permitted to agitate on various issues. (11) Letters Patent Appeal No. 1068 of 2010 was preferred to challenge said order dated 22.02.2010 and by order dated 08.07.2010 said Letters Patent Appeal was withdrawn. 6. PRESENT Application along with Letters Patent Appeal (Stamp) Number came to be filed before this Court on 11.07.2010. (11) Letters Patent Appeal No. 1068 of 2010 was preferred to challenge said order dated 22.02.2010 and by order dated 08.07.2010 said Letters Patent Appeal was withdrawn. 6. PRESENT Application along with Letters Patent Appeal (Stamp) Number came to be filed before this Court on 11.07.2010. Certified copy of the order impugned in the appeal came to be applied for on 12.07.2010 which was ready on 13.07.2010; was notified on 16.07.2010 and delivery of the copy was taken on 16.07.2010. With above backdrop of facts, we are now required to examine the case of the applicant for condonation of delay. 7. IN this context, judgment relied on by learned Advocate Mr.Parikh may be referred to. Hon'ble Apex Court in the case of C.Jacob v. Director of Geology and Mining and Anr. [ (2008) 10 SCC 115 ] observed in paragraph 8 and 9 as under :- "8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex- employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. 9. The Courts/Tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. 9. The Courts/Tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex- employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex- employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. IN this manner, the bar of limitation or the laches gets obliterated or ignored." 8. IN the case of Jatunhibi w/o. Gulam Mohiyodin Sheikh and Ors. V/s State of Gujarat [2000 (2) GLR 1599], this Court refused to condone delay considering lack of action on the part of the applicant therein for a long time and also considering case of the applicant that he approached the respondent authority for number of times. The case of the applicant, therefore, will have to be considered in above set of facts and law. Admittedly, impugned order was passed on 06.09.2006 and thereafter, first action initiated by the applicant was in the form of notice dated 03.05.2007. During this period, the applicant does not claim to have taken any action on his part nor does he explain why he did not take any action to challenge the order impugned in this appeal. This become more relevant because during interregnum period, on 27.09,2006 the applicant came to be acquitted in the criminal trial. His case in the petition itself was that he could not have been terminated from service during the pendency of criminal trial and in light of acquittal, some action on his part can reasonably be expected, which he has failed to do. 9. AFTER issuance of notice dated 03.05.2007, the respondent gave suitable reply on 16.05.2007. His case in the petition itself was that he could not have been terminated from service during the pendency of criminal trial and in light of acquittal, some action on his part can reasonably be expected, which he has failed to do. 9. AFTER issuance of notice dated 03.05.2007, the respondent gave suitable reply on 16.05.2007. Thereafter, again the applicant does not take any tangible action till 01.04.2008 when he came to have learnt that no Suit was filed though plaint was signed by him as claimed on 06.11.2007. Therefore, again for the period from 16.05.2007 to 01.04.2008 there is no action on the part of the applicant and the inaction is not explained. The applicant then again made mercy petition/representation on 01.04.2008. Thereafter, he filed Recovery Application under Section 33C(2) of the Industrial Disputes Act before the Central Industrial Tribunal somewhere in 2008 and withdrew the same on being opposed to by the other side. The applicant then approached this Court with Special Civil Application No. 11859 of 2009 which came to be summarily dismissed on 22.02.2010. The applicant preferred Letters Patent Appeal No. 1068 of 2010 which came to be withdrawn on 08.07.2010 and then the applicant approaches this Court with present application and Letters Patent Appeal on 11.07.2010. 10. WHAT emerges from the above discussion is that after representation dated 01.04.2008, the applicant filed Recovery Application to mean that he had accepted the verdict against him and after withdrawing the same he approached this Court with Special Civil Application No.11859 of 2009. On that being dismissed he preferred Letters Patent Appeal No. 1068 of 2010 which also came to be withdrawn on 08.07.2010. In between 01.04.2008 and date of filing of Special Civil Application No. 11859 of 2009, there is no action on the part of the applicant to challenge the impugned order. On the contrary, recovery application under Industrial Disputes Act is preferred which can be inferred to that he had accepted the verdict against him and had abundant the grievance which according to him has remained unredressed. 11. AFTER withdrawal of the appeal, present application was filed and the certified copy annexed indicates that copy was applied on 12.07.2010 which was delivered on 16.07.2010 although ready on 13.07.2010 and notified to be ready on 16.07.2010. 11. AFTER withdrawal of the appeal, present application was filed and the certified copy annexed indicates that copy was applied on 12.07.2010 which was delivered on 16.07.2010 although ready on 13.07.2010 and notified to be ready on 16.07.2010. It is a fact that there is no explanation as to why the applicant did not even ask for certified copy from 06.09.2006 to 12.07.2010. Had he been really interested in pursuing the cause in preferring the appeal, he would have certainly taken some action during this above period of four years, which also has remained unexplained. However, in our view, explanation lies in the petition i.e. Special Civil Application No. 115 of 2006 wherein the challenge to the order of punishment was based only on the ground that pending criminal trial, the applicant could not have been removed from service. The applicant had not canvassed any other point before the learned Single Judge and after his acquittal on 27.09.2006 nothing survived to be argued or challenged in the appeal and therefore, the applicant opted for other remedy like filing suit, preferring mercy petition, filing recovery application and then preferring another petition being Special Civil Application No. 11859 of 2009. 12. EXPANDING our line of thoughts further, we find that even if the delay is condoned and appeal is sought to be decided on merits, it would not help the applicant in any manner as he had not argued the matter on merits before the learned Single Judge. The only point that was canvassed was that during the pendency of criminal trial, the applicant could not have been removed from service. Now that the trial is over and he is acquitted of charges, it would not be possible for him to canvass any new point on merits which were not canvassed before the learned Single Judge. Therefore, even if the delay is condoned and appeal is entertained, it is not going to help the applicant in any manner. Learned Advocate Ms. Shah for the applicant relied on decision in the case of Improvement Trust, Ludhiana v. Ujagar Singh and Ors. Therefore, even if the delay is condoned and appeal is entertained, it is not going to help the applicant in any manner. Learned Advocate Ms. Shah for the applicant relied on decision in the case of Improvement Trust, Ludhiana v. Ujagar Singh and Ors. [ (2010) 6 SCC 786 ] whereby the Hon'ble Apex Court held that while considering application for condonation of delay, no straitjacket formula can be prescribed; each case is to be weighed on its facts and circumstances; and it was found that from conduct, behaviour and attitude of the appellant, it cannot be said that he had been callous and negligent in prosecuting the matter and, hence, delay is to be condoned. There cannot be any dispute on that aspect. In that case, there was no lapse on the part of the litigant. Advocate appointed by the appellant failed to appear on listed dates and also failed to intimate the appellant. In the instant case, except for vague allegation about having signed a plaint and learned Advocate having not filed a suit between 06.11.2007 and 01.04.2008, the applicant has not tendered any cause for inaction between 06.09.2006 and 03.05.2007. Similarly, between 16.05.2007 and 01.04.2008. 13. THAT apart, as discussed earlier, even if the appeal is considered on merits, it would not be permissible for the applicant to canvass new points which were not argued before the learned Single Judge as the only point canvassed before the learned Single Judge was regarding termination being not proper on ground of pendency of criminal proceedings which came to an end, within days of passing impugned order. Judgment, therefore, cannot be of any help to the applicant. 14. LEARNED Advocate Ms. Shah for the applicant has also relied on decision in the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others [ AIR 1987 SC 1353 ] where it was observed that the Courts should adopt liberal approach while condoning delay indicating six reasons. Again there cannot be any dispute on this aspect but action on the part of the applicant has to be prudent, cogent and reasonable. Gross inaction would reflect only callousness and therefore, this judgment cannot of any help to the applicant. In view of above discussion that there was gross inaction on the part of the applicant between 06.09.2006 to 03.05.2007, between 16.05.2007 to 01.04.2008 and thereafter. Gross inaction would reflect only callousness and therefore, this judgment cannot of any help to the applicant. In view of above discussion that there was gross inaction on the part of the applicant between 06.09.2006 to 03.05.2007, between 16.05.2007 to 01.04.2008 and thereafter. The inaction has not been attempted to be explained. The above conclusion is reached by taking case of the applicant at its face value. This apart, as discussed earlier, even on merits, the applicant's appeal if entertained, is not likely to help the applicant in any manner and the exercise would be purely academic and no substantive justice is likely to be rendered by condoning delay. 15. THE application, in our opinion, is devoid of merits and stands dismissed. No costs. As the Civil Application is dismissed, Letters Patent Appeal (Stamp) Number 1477 of 2010 stands disposed of. Application dismissed.