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2013 DIGILAW 2030 (ALL)

Om Prakash Yadav v. State of U. P. and Others

2013-08-05

SUDHIR AGARWAL

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Sudhir Agarwal, J.;— 1. This is a case where an employee, who was transferred as long back as in May' 1998 could dare to defy order of transfer for years together though there was no authority in the shape of stay order passed by this Court or by the executive authorities. 2. It appears that challenging the order of transfer passed on 29.5.1998, transferring the petitioner from Tube Well Division, Etah, Region Aligarh to Agra, he preferred Civil Misc. Writ Petition No. 33046 of 1998 which was disposed of on 4.10.1998 permitting the petitioner to make a representation and the authorities were directed to decide the same. Admittedly, the order of transfer was neither stayed nor the petitioner was otherwise had any authority not to comply with the order of transfer. The authority concerned rejected petitioner's representation by order dated 5.12.1998. Even till that date, order of transfer was not complied with. The order rejecting representation was challenged in Civil Misc. Writ Petition No. 865 of 1999 which was allowed on 22.11.2001 and the authority concerned was directed to decide petitioner's representation afresh giving reasons. By a detailed order, the representation was rejected vide order dated 23.1.2002, whereagainst petitioner came in third Writ Petition No. 21510 of 2002 which was dismissed on 5.7.2005, whereagainst Special Appeal No. 959 of 2005 was preferred which was also dismissed by order dated 22.8.2005. Even during this entire period, petitioner did not comply with the order of transfer having been passed as long back as on 29.5.1998. Then again petitioner came to this Court in fourth Writ Petition No. 65052 of 2005 seeking a mandamus commanding the respondents to allow him to join at transferred place at Agra. In this writ petition, an explanation was sought by this Court vide order dated 5.10.2005 from authorities concerned as to why no action has been taken against the petitioner for not complying order of transfer passed on 29.5.1998. Ultimately this writ petition was also dismissed on 22.5.2013. 3. The fact remains that the petitioner having not complied with the order of transfer, the competent authority, in the meantime, by order dated 3.10.2005 had terminated him from service. 4. Now this writ petition has been filed challenging this order of termination on the ground of having been passed without holding enquiry and, therefore, vitiated in law. 5. There are at least two major hurdles in petitioner's way. 4. Now this writ petition has been filed challenging this order of termination on the ground of having been passed without holding enquiry and, therefore, vitiated in law. 5. There are at least two major hurdles in petitioner's way. First that the defiance of order of transfer on the part of petitioner is an admitted fact, which has continued for almost six years. 6. In Gujarat Electricity Board and another Vs. Atmaram Sungomal Poshani AIR 1989 SC 1433 , this Court had an occasion to examine the case of almost similar nature. This Court observed as under: "Transfer from one place to another is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other." 7. In Mithilesh Singh v. Union of India and Ors. AIR 2003 SC 1724 , the settled legal position has been reiterated. The court held that absence from duty without proper intimation is indication of a grave misconduct warranting removal from service. 8. The above authorities have been referred to and followed by Apex Court recently in Tushar D. Bhatt Vs. State of Gujarat and Anr. (2009) 11 SCC 678 . 9. Besides, the termination order was passed in 3.10.2005 and has been challenged in 2013 by means of this Writ Petition. There is no explanation about this extraordinary delay and laches of eight years in the entire writ petition. 10. State of Gujarat and Anr. (2009) 11 SCC 678 . 9. Besides, the termination order was passed in 3.10.2005 and has been challenged in 2013 by means of this Writ Petition. There is no explanation about this extraordinary delay and laches of eight years in the entire writ petition. 10. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, the Apex Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993 , it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423 . This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297 . In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479 the Apex Court held that it is well settled principle of law that delay defeats equity. State of U.P. and others, 2008(4) ESC 2423 . This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297 . In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479 the Apex Court held that it is well settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus Vs. State of Maharashtra and others, 2009(3) SCC 281 the Court referred to the observations of Sir Barnesdelay Peacock in Lindsay Petroleum Company Vs. Prosper Armstrong Hurde etc. (1874) 5 PC 239 and held as under: "Now the doctrine of laches in Courts of Equity is not an arbitrary or 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....... 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." 11. In these facts and circumstances, I do not find it a fit case justifying exercise of equitable extraordinary jurisdiction under Article 226 of the Constitution. 12. Dismissed. _____________