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2014 DIGILAW 285 (MEG)

Ashok Kumar Yadav v. Union of India

2014-12-03

S.R.SEN, UMA NATH SINGH

body2014
Judgment Uma Nath Singh; ACJ. 1. We have heard learned counsel for the parties and perused the application for condonation of delay of 1536 days under Section 5 of the Limitation Act in filing this writ appeal and also averments of writ appeal. 2. It appears from averments made therein that the applicant was discharged from service by the Commandant, 24 Assam Rifles vide order dated 07.09.2007 on the ground that he was held to be an incorrigible offender soldier. Thereafter, he filed first writ petition on 30.01.2008 being WP(C) No. 8 (SH) 2008, which was dismissed on 09.06.2010. Thereafter, he filed a fresh WP(C) No. 341(SH)2011 for grant of pension and gratuity. That writ petition was also dismissed on 05.10.2012. On 27.03.2014, the applicant/appellant filed writ appeal, namely, WA No. 34 of 2014, which was dismissed on 16.06.2014. After dismissal of writ appeal, the applicant/appellant again filed a writ appeal with application for condonation of delay challenging earlier judgment and order dated 09.06.2010, passed by learned Single Judge in WP(C) No. 8(SH) of 2008. As per paragraph 11 of application, for condonation of delay, the delay calculated by the applicant/appellant is 1536 days in filing writ appeal, which according to him is not at all intentional but has occurred under the circumstances as detailed in the said paragraph, which is reproduced as under: "That the applicant humbly submits that there is delay of 1536 days in filing the writ appeal which is not at all intention but occurred because of circumstances as the applicant was discharged on 07.09.2007 with promise to given pension and gratuity and on refusal, the applicant on 30.01.2008 filed WP(C) No. 8(SH) 2008 challenging the discharged order, the writ petition was dismissed on 09.06.2010. Thereafter, on the advice of the counsel, the applicant approached the department from 10.06.2010 to 12.12.2011 for pension as per promise made in 2nd part of the discharged order and the department took long time to take decision and ultimately, in the last part of Nov 2011, the applicant was informed by the department that he would not be granted with the pension inspite of the promise made in 2nd part of the discharge order dated 07.09.2007. Therefore, on 13.12.2011 the applicant filed a fresh WP(C) No. 341(SH) 2011 before the learned Single Judge, but the said writ petition was dismissed on 05.10.2012 and thereafter, on 27.03.2014 the WA No. 34 of 2014 was filed challenging the judgment and order dated 5.10.2012 and thereafter, on 27.03.2014 the WA No. 34 of 2014 was filed challenging the judgment and order dated 5.10.2012 passed by the learned Single Judge in WP(C) No. 34(SH) 2011 and said writ appeal was also dismissed by judgment and order dated 16.06.2014 passed in WA No. 34 of 2014. The breakup of the time delay is shown below: THE BREAK UP OF THE DELAY 3. In reply to application for condonation of delay, the respondent-Department has filed an affidavit dated 14.11.2014. Relevant averments in respect of condonation of delay are contained in paragraphs 3 and 4 of that affidavit. The same are also reproduced hereunder: "That the applicant who has been serving as Riflemen in Assam Rifles was discharged vide order dated 10.08.2007 for having had incurred four rend ink and two black ink entries in his service record for 9 years. The applicant impugning the order dated 10.08.2007 preferred the WP(C) No. 8(SH) of 2008 before the erstwhile Shillong Bench of the Hon'ble Gauhati High Court, which was dismissed by the Hon'ble Court after hearing the parties vide judgment and order dated 9.8.2010. The applicant, thereafter, had filed another WP(C) No. 341(SH) of 2011 before the said Hon'ble Court praying inter alia for a direction to grant pension the applicant. The said writ petition was also dismissed after hearing the parties vide judgment and order dated 5.10.2012. The applicant impugning the order dated 5.10.2012 had preferred WA No. 34 of 2014 before this Hon'ble Court and this Hon'ble Court vide judgment and order dated 16.6.2014 disposed of the appeal holding that "we are of the considered view that no materials had been made out to interfere with the judgment and order of the learned Single Judge dated 5.10.2012 passed in WP(C) No. 341(SH)2011. However, the appellant/writ petitioner is entitled to get his gratuity. In such circumstances, the respondents are directed to release the gratuity to the appellant/writ petitioner, if not already paid within a period of one month from the date of receipt of certified copy of this judgment and order. With the above observations and directions, this writ appeal is disposed of. However, the appellant/writ petitioner is entitled to get his gratuity. In such circumstances, the respondents are directed to release the gratuity to the appellant/writ petitioner, if not already paid within a period of one month from the date of receipt of certified copy of this judgment and order. With the above observations and directions, this writ appeal is disposed of. The opposite party in compliance with the said judgment and order had remitted the balance of the gratuity amounting to Rs. 9571/- by E-payment through Account No. 104328608835 on 30.6.2014 to the applicant. 4. That the applicant assailing the judgment and order dated 9.6.2014 in WP(C) No. 8 of 2008 chose to prefer another WP(C) No. 341(SH) 2001 and on its dismissal vide judgment and order dated 5.10.2012, preferred the WA No. 34 of 2014 impugning the judgment and order dated 5.10.2012, the writ appeal was also disposed of vide judgment and order dated 16.6.2014. The applicant after about four years from the date of judgment and order dated 9.6.2010 in the WP(C) No. 8 of 2008 has preferred the present writ appeal impugning the said judgment and order seeking condonation of delay of 1565 days. An exercise which amounts to abusing the process of law, as such this application is liable to be rejected." 4. At the end, in paragraph 14, it is mentioned that the application for condonation of delay is misconceived and it amounts to abuse of process of law and Court. Thus, it is not sustainable in law and thus applicant is not entitled to get any relief. 5. On due consideration of averments made in said affidavit and also in view of submissions of the learned counsel for parties, we are not inclined to interfere in this writ appeal for reasons that it not only suffers only from inordinate delay of 1536 days in filing but on the same cause of action, the applicant has indulged in instituting repeated litigations which may amount to abuse the process of Court. But looking to the fact that the applicant was discharged in 2007 and has no source of income as he was denied pension, we do not want to impose any costs. Hence, the application for condonation of delay and Writ Appeal, both, are hereby dismissed.