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2014 DIGILAW 100 (JK)

Bhadur Lal v. Union of India and Anr.

2014-03-10

M.M.KUMAR, MUZAFFAR HUSSAIN ATTAR

body2014
M.M.Kumar; CJ. 1. The instant appeal is directed against the judgment and order dated 07.05.2013 rendered by the learned Single Judge of this Court declining the relief claimed by the appellant for grant of disability pension. It appears that the basis for rejection of the prayer made by the appellant is that the cause of action had arisen to him on 21.04.1994 when the order was passed in his second appeal by the competent authority. The aforesaid order has not been made basis of challenge in the writ petition and also there is huge delay in filing the petition. 2. We have heard learned counsel for the parties. 3. The question with regard to delay has been repeatedly considered by Hon’ble the Supreme Court with regard to pension and disability pension matters. In the cases of Shiv Dass v. Union of India, (2007) 1 SCC 455 and Union of India and others v. Tarsem Singh (2008) 8 SCC 648 the question of delay has been dealt with by concluding that in such like cases relief can be molded by restricting the payment of arrears to three years preceding the date of filing of the writ petition. On the basis of the aforesaid judgments claim for disability pension could not have been thrown out on the ground of delay and laches. It could be justifiably met by modifying the relief by confining the areas of three years and two months preceding the date of filing the petition. 4. The other ground for rejection of the claim made by the appellant adopted by the learned Writ Court was that order dated 21.04.1994 and other orders have not been challenged. It could have also been met by granting opportunity to the appellant to amend the petition. If despite grant of opportunity the appellant failed to amend the writ petition then the order non-suiting the appellant on that ground could have constituted the basis for dismissing the petition. In that regard reliance may be placed on the observations made by their Lordships of the Supreme Court in the case of Prabodh Verma and others v. State of U.P. and others (1984) 4 SCC 251 (para 38). In that case Hon’ble the Supreme Court was examining issue concerning the prayer for appropriate writ to seek relief of declaring a statute as ultra vires of the Constitution. In that case Hon’ble the Supreme Court was examining issue concerning the prayer for appropriate writ to seek relief of declaring a statute as ultra vires of the Constitution. The writ petitioner had asked for a writ of certiorari and their Lordships opined that the proper writ to be sought in such like cases was a writ of mandamus. It was further held that once a writ petition is drafted by a counsel who is qualified to practice then the Court must insist for drafting a petition with proper averments and pertinent prayer. At the same time the writ petition may not be dismissed on that ground without providing opportunity to amend the petition. The pertinent observations are discernible from the perusal of para 38, which is set out below in extenso:- 38. A writ in the nature of certiorari is thus a wholly inappropriate relief to ask for when the constitutional validity of a legislative measure is challenged and it is surprising to find that in spite of repeated pronouncements of this Court as to the true nature of this writ it should have been asked for in the Sangh's petition. As pointed out in Dwarkanath's case, under Article 226 the High Courts have the power to issue directions, orders and writs, including prerogative writs. This power includes the giving of declarations as also consequential reliefs including relief by way of injunction. The proper relief for the petitioners in the Sangh's petition to have asked was a declaration that U.P. Ordinance 22 of 1978 was unconstitutional and void and, if a consequential relief was thought necessary, a writ of mandamus or writ in the nature of mandamus or a direction, order or injunction restraining the State and its officers from enforcing or giving effect to the provisions of that ordinance. The High Court granted the proper relief by declaring that Ordinance to be void but it should have, before proceeding to hear the writ petition, insisted that the petitioners should set their house in order by amending the petition and praying for proper reliefs. The High Court was too indulgent in this matter. After all, it was not a petition from a Prisoner languishing in jail or from a bonded labourer or a party in person or by a public spirited citizen seeking to bring a gross injustice to the notice of the court. The High Court was too indulgent in this matter. After all, it was not a petition from a Prisoner languishing in jail or from a bonded labourer or a party in person or by a public spirited citizen seeking to bring a gross injustice to the notice of the court. Here, the High Court had before it as the main petitioner a union which had taken collective action to enforce its demands and had defied the Government by flouting its orders and an ordinance promulgated by the Governor, namely, U.P. Ordinance 25 of 1977, and had by reason of its collective might ultimately made the Government come to terms with it. The petitioners were represented by well known Counsel, one of them practising in this Court. It is true that neither this Court should dismiss a writ petition on a mere technicality or just because a proper relief is not asked for; but from this it does not follow that it should condone every kind of laxity. We would not have dwelt upon this aspect of the case but for the fact that we find that laxity in drafting all types of pleadings is becoming the rule and a well-drafted pleading, an exception. An ill-drafted pleading is an offspring of the union of carelessness with imprecise thinking and its brothers are slipshod preparation of the case and rambling and irrelevant arguments leading to waste of time which the courts can ill afford by reason of their overcrowded dockets. (emphasis added). 5. In view of the above, we set aside the impugned judgment by giving the appellant one opportunity to file amended petition before the writ court. Let an appropriate application seeking amendment of the petitioner be filed before the writ court within four weeks from today. With the aforesaid observations, writ petition is remanded back to the Writ Court for decision afresh in accordance with law. 6. Appeal stands disposed of.