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2018 DIGILAW 1555 (ALL)

JIAUDDEEN v. STATE OF U. P.

2018-07-17

AJAY BHANOT

body2018
JUDGMENT Hon’ble Ajay Bhanot, J.—Heard Sri Shailesh Verma, learned counsel for the petitioner and Sri Jai Singh Yadav, learned counsel for the respondent No. 4. 2. The petitioner has not made a clean and complete disclosure of all facts in the writ petition. The facts are not pleaded with clarity. However, from the order dated 28.5.2003 passed by the Commissioner, Gorakhpur Division, Gorakhpur, which is annexed as annexure 1 to the writ petition the essential facts can be prised out. The order dated 28.5.2003 passed by the learned Commissioner, Gorakhpur Division, Gorakhpur, in the appeal instituted by the petitioner records the following facts. 3. The petitioner was accused of various acts of misconduct like electricity theft, acts of theft at the residence of Assistant Engineer and absence from duty. The petitioner was found guilty of the charges and his services were terminated in the year 1999. The petitioner took the order of termination in appeal. The appellate authority by order dated 1.8.2001 remanded the matter for fresh consideration/enquiry after adopting the procedure laid down by law. 4. Pursuant to the order of remand dated 1.8.2001 passed by the appellate authority, a charge-sheet was drawn up against the petitioner on 3.9.2001. The petitioner replied to the aforesaid charge-sheet on 15.9.2001. The enquiry committee found the petitioner guilty of the acts of misconduct. It confirmed the earlier recommendation of the enquiry committee to terminate his services sent on 29.10.1999. On the foot of aforesaid enquiry report the Chairman, Nagar Panchayat, Siswa Bazar, Maharajganj, by order dated 6.12.2001 terminated the services of the petitioner. 5. The petitioner carried the said termination order in appeal by instituting an appeal on 6.3.2002. However, while the appeal was still on foot, the subsequent Chairman of the Nagar Panchayat, Siswa Bazar, Maharajganj one Jagdish Prasad Jaiswal passed an order on 1.3.2003 reinstating the petitioner in service. The order dated 1.3.2003 was purportedly passed in compliance of the order passed by the Commissioner on 1.8.2001. 6. In the light of the reinstatement of the petitioner by the Chairman, Nagar Panchayat, Siswa Bazar, Maharajganj, the Commissioner/appellate authority held that the appeal against the order of termination dated 6.12.2001 had become infructuous. The appeal was dismissed by the order dated 28.5.2003. 7. The petitioner was reinstated in service on the foot of the order dated 1.3.2003 passed by the then Chairman of the Nagar Panchayat, Siswa Bazar, District Maharajganj. 8. The appeal was dismissed by the order dated 28.5.2003. 7. The petitioner was reinstated in service on the foot of the order dated 1.3.2003 passed by the then Chairman of the Nagar Panchayat, Siswa Bazar, District Maharajganj. 8. The petitioner claimed the arrears of salary for the period October, 1999 to February, 2003 in a writ petition, registered as Writ-A No.8262 of 2018, Jiauddeen v. State of U.P. and others. The said writ petition was disposed of by judgment entered by this Court on 20.3.2018. The operative portion of the judgment is reproduced hereunder : “The writ petition is disposed of giving liberty to the petitioner to file a fresh representation giving details of salary of the aforesaid period which was due alongwith certified copy of this order before Executive Officer within a period of two weeks. In case any such representation is filed then same may be decided by reasoned and speaking order within a period of two months from the date of producing a certified copy of this order.” 9. In compliance of the order passed by this Court in the aforesaid writ petition an order rejecting the claim of back wages was passed on 12.6.2018. 10. The petitioner has assailed the order dated 12.6.2018 rejecting his claim for back-wages for the period October, 1999 to February 2003 in this writ petition. 11. The petitioner approached this Court for the first time in the year 2018, for the claim of back-wages relating to the period from October, 1999 to February, 2003. He came to Court after 15 years. In the garb of the order passed by this Court on 20.3.2018, the petitioner cannot evade the issue of delay or escape the responsibility for the laches on his part. The order dated 12.6.2018 passed by the respondent, rejecting the claim of the petitioner does not constitute a fresh cause of action. The petitioner cannot seek the condonation on the footing of the said order. 12. The Courts are required by law to apply their mind to the question and consequences of delay and laches and enter a finding thereon, before exercising their discretionary power under Article 226 of the Constitution of India. 13. The Courts have consistently observed that delay and laches on part of the litigant will disentitle him to any relief. 12. The Courts are required by law to apply their mind to the question and consequences of delay and laches and enter a finding thereon, before exercising their discretionary power under Article 226 of the Constitution of India. 13. The Courts have consistently observed that delay and laches on part of the litigant will disentitle him to any relief. In this regard the Hon’ble Supreme Court has settled the law with clarity and observed it with consistency. 14. The line of authorities on this point both consistent and long. It would be apposite to cite same authorities which would give a good sense of law on the point. 15. The Hon’ble Supreme Court in the case of R & M Trust v. Koramangala Residents Vigilance Group and others, 2005 (3) SCC 91 while declining to exercise discretion in favour of a litigant who was not vigilant to his rights, held thus: “There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights.” 16. The Hon’ble Supreme Court in the case of Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, AIR 1969 SC 329 held thus : “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. 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.” 17. A similar sentiment was echoed by the Hon’ble Supreme Court in the case of Shiv Dass v. Union of India, 2007 (9) SCC 274 the Hon’ble Supreme Court opined as under : “the High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.” 18. When the issue of delay and laches came up before the Hon’ble Supreme Court in the case of Shankara Co-op Housing Society Ltd. v. M. Prabhakar and others, 2011(5)SCC 607 the Hon’ble Supreme Court reiterated settled position of law and confirmed the well established criteria which has to be considered before exercise of discretion under Article 226 of the Constitution of India. The relevant portion is extracted hereinbelow : “53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ Court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. They are: (1) there is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the Petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the Petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the Petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay.” 19. The Hon’ble Supreme Court also noticed the ingenuous devices adopted by unscrupulous litigants to tide over the delay and laches on part of such litigants. One such commonly used device is by filing a representation to the authorities after a long delay. Such litigants then approach the Court with an innocuous prayer to decide the representation. Once such representation is decided in compliance of orders of the Court, it is claimed that a fresh cause of action has arisen. Stale wine does not became fresh in a new bottle. The Hon’ble Supreme Court saw through the designs of such litigants and foiled their intent in no uncertain terms. 20. The Hon’ble Supreme Court considered this issue in the case of C. Jacob v. Director of Geology & Min. Indus. Est. and another, 2008 (10) SCC 115 . The law laid down by the Hon’ble Supreme Court would guide the fate of the case. The relevant extract of the judgment is reproduced hereunder for ease of reference : “6. 20. The Hon’ble Supreme Court considered this issue in the case of C. Jacob v. Director of Geology & Min. Indus. Est. and another, 2008 (10) SCC 115 . The law laid down by the Hon’ble Supreme Court would guide the fate of the case. The relevant extract of the judgment is reproduced hereunder for ease of reference : “6. 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. 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. 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” 21. A similar view was taken by the Hon’ble Supreme Court in the case of S.S. Rathore v. State of Madhya Pradesh, 1989 (4) SCC 582 . The relevant extract of the judgment is reproduced hereunder for ease of reference : “It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation.” 22. Law has long set its face against delay in approaching the Court. The Courts have consistently declined to condone the delay and denied relief to litigants who are guilty of laches. Litigants who are in long slumber and not vigilant about their rights are discouraged by the Courts. Belated claims are rejected at the threshold. Rip Van Winkles have a place in literature, but not in law ! 23. All this is done on the foot of the rule of delay and laches. Statutes of limitation are ordained by the legislature, rule of laches was evolved by the Courts. Sources of the law differ but the purpose is congruent. Statutes of limitation and the law of delay and laches are rules of repose. 24. The rule of laches and delay is founded on sound policy and is supported by good authority. Statutes of limitation are ordained by the legislature, rule of laches was evolved by the Courts. Sources of the law differ but the purpose is congruent. Statutes of limitation and the law of delay and laches are rules of repose. 24. The rule of laches and delay is founded on sound policy and is supported by good authority. The rule of laches and delay is employed by the Courts as a tool for efficient administration of justice and a bulwark against abuse of process of Courts. 25. Some elements of public policy and realities of administration of justice may now be considered. 26. While indolent litigants revel in inactivity, the cycle of life moves on. New realities come into existence. Oblivious to the claims of the litigants, parties order their lives and institutions their affairs to the new realities. In case claims filed after inordinate delay are entertained by Courts, lives and affairs of such individuals and institutions would be in a disarray for no fault of theirs. Their lives and affairs would be clouded with uncertainty and they would face prospects of long and fruitless litigation. 27. The delay would entrench independent third party rights, which cannot be dislodged. The deposit of subsequent events obscures the original claim and alters the cause itself. The refusal to permit agitation of stale claims is based on the principle of acquiescence. In certain situations, the party by its failure to raise the claim in time waives its right to assert it after long delay. 28. The rule of delay and laches by preventing the assertion of belated claims puts to final rest long dormant claims. This policy of litigative repose, creates certainty in legal relations and curtails fruitless litigation. It ensures that the administration of justice is not clogged by pointless litigation. 29. The above stated position of law on the question of delay and laches on part of the petitioner is applicable to the facts of the case. There is no satisfactory explanation of the delay in writ petition. The claims of the petitioner are made on public money. The relief sought is against the State Government to release of back wages within interest. The specific facts of this case have raised a larger question of law. The facts of the case need of closer look. 30. Claims on the state exchequer have to be scrutinized with care. The claims of the petitioner are made on public money. The relief sought is against the State Government to release of back wages within interest. The specific facts of this case have raised a larger question of law. The facts of the case need of closer look. 30. Claims on the state exchequer have to be scrutinized with care. They directly impact the fiscal discipline of the state and have a bearing on the economy of the state. A liberal view on delay and laches in such cases would lead to endless and irresponsible claims on the state exchequer. 31. The claims on the State exchequers are not interminable and the State exchequer is not inexhaustible. The State exchequer is not an easy prey and litigation is not a fail safe gamble for lazy and unscrupulous litigants. The Courts are the sentinels of law and stand guard against delayed and dishonest claims on public money. 32. The claim of the petitioner is both delayed and dishonest. 33. The delay and laches in this case are fatal to the writ petition. The delay and laches have not been satisfactorily explained. The delay in making the claim is admitted. The dishonesty of the claim has to be probed. 34. The petitioner has claimed interest from the state at the rate of 18%, for delay in payment of back-wages. 35. The delay has been caused by petitioner, but he wants the state to pay for it. The petitioner wants to take advantage of his own faults. The petitioner wants his defaults to become the source of a windfall. This is the danger in stale claims of back-wages. The relief sought by him has to be rejected. 36. In view of the law laid down by Hon’ble Supreme Court, and the admitted facts of the case, this writ petition is not maintainable on the grounds of delay and laches on part of the petitioner. The writ petition is liable to be dismissed on this ground alone. 37. There are other factual aspects of this controversy which disentitle the petitioner to any relief from this Court. 38. The order of Chairman Nagar Panchayat, Siswa Bazar, Maharajganj dated 1.3.2003 recalled the order of termination passed on 6.12.2001 and reinstated the petitioner. The order dated 1.3.2003 does not grant back wages to the petitioner. 37. There are other factual aspects of this controversy which disentitle the petitioner to any relief from this Court. 38. The order of Chairman Nagar Panchayat, Siswa Bazar, Maharajganj dated 1.3.2003 recalled the order of termination passed on 6.12.2001 and reinstated the petitioner. The order dated 1.3.2003 does not grant back wages to the petitioner. The petitioner joined his duties in pursuance to the order of reinstatement dated 1.3.2003, without any demur or protest. The claim of back-wages was denied by the authority, by not granting him back-wages at the time of reinstatement. The claim of back wages was not raised at that point in time. The petitioner has waived his claim for any back wages. Similarly the order of Commissioner, Gorakhpur Division, Gorakhpur, passed in the appeal on 28.5.2003 did not grant back wages to the petitioner. The grant of back-wages to the petitioner was in issue before the Commissioner in the aforesaid appeal. However, the appeal was dismissed by order dated 28.5.2003. Relief which ought to have been claimed but was not claimed, means the claim was relinquished. The cause of action for grant of back wages (assuming for the sake of argument it was a valid claim) arose on 1.3.2003 and or on 28.5.2003 when the order was passed by the Commissioner. 39. Backwages are an exception carved out of the concept of “no work no pay”. Backwages are not granted as a matter of routine or by the rule of thumb. The competent authority has to fix the quantum of back-wages, at the time of reinstatement, after consideration of all relevant facts and attending circumstances as per law. The claim, if any, for back-wages materializes at the time of the reinstatement or quashment of the termination order. It has to be raised at that point in time, or in proximity thereof. 40. The grant of consequential benefits including back-wages upon reinstatement in service has engaged the Hon’ble in number of occasions. The quantum of back-wages to be awarded upon reinstatement has been a matter where there is some divergence in judicial views. However, there is unanimity on the point that the grant of back wages upon reinstatement alongwith other consequential benefits, is not a matter of routine. A decision has to be entered by the authority on the facts of each case at the time of the reinstatement of the employee. However, there is unanimity on the point that the grant of back wages upon reinstatement alongwith other consequential benefits, is not a matter of routine. A decision has to be entered by the authority on the facts of each case at the time of the reinstatement of the employee. The Hon’ble Court in the case of Krishnakant Raghunath Bibhavnekar v. State of Maharashtra and others, 1997 (3) SCC 636 . The Hon’ble Supreme Court held thus : “In our considered view, this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal.” 41. Unlike wages or salary which became payable after a specified period of work. Backwages do not become due at the beginning of specified period. Denial of wages after every specified period of work, when they become due, is a cause of action. The cause recurs each time when the wages become due but are denied. Backwages are a one time affair. Denial of back-wages is not a recurring cause of action. 42. In the case at hand no back-wages were granted at the time of the reinstatement, no claim for back-wages was raised by petitioner at the time of reinstatement. In fact as found earlier the claim of back-wages was denied and the conduct of the petitioner shows it was waived. In view of the above discussion the claim of back-wages is not a recurring cause of action. The injury caused by denial of back-wages is complete when at the time of reinstatement back-wages are not granted. There is no continuing wrong though the perceived affect for denial of back-wages may continue indefinitely. The above proposition of law can be fortified by the law laid down by the Hon’ble Supreme Court in the case of Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798 . The relevant part of the judgment is extracted herein below : “It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. The relevant part of the judgment is extracted herein below : “It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.” 43. There is another aspect to the matter. The order of reinstatement of the petitioner dated 1.3.2003 passed by the Chairman Nagar Panchayat, Siswa Bazar, Maharajganj is of questionable legal validity. Once the services of the petitioner were terminated by the competent authority by order dated 6.12.2001 the employer employee relationship between the petitioner and Nagar Panchayat, Siswa Bazar, Maharajganj ceased. The matter was engaging the attention of the appellate authority. The Chairman of the Nagar Panchayat, Siswa Bazar, Maharajganj prima facie did not have the lawful authority to review the earlier order of termination passed by the appointing authority on 6.12.2001. No power of review could be pointed out by the learned counsel for the petitioner. No authority was brought to the notice of the Court which authorised the Chairman of the Nagar Panchayat, Siswa Bazar, Maharajganj to reinstate a terminated employee, whose appeal was pending before the competent authority. 44. The order of reinstatement dated 1.3.2003 is not being tested on merits by this Court, though doubts about its legality are remain. In these circumstances, the claim of the petitioner is not only delayed but dishonest. The grant of back wages would legitimise an order of questionable validity, passed by the Chairman, Nagar Panchayat, reinstating the petitioner in service on 1.3.2003. 45. The claim of back-wages in these facts is not tenable in law, on merits. The legality of the reinstatement has to be established first. A mandamus cannot be issued to authorities to enforce an uncertain claim based on a questionable order. 45. The claim of back-wages in these facts is not tenable in law, on merits. The legality of the reinstatement has to be established first. A mandamus cannot be issued to authorities to enforce an uncertain claim based on a questionable order. The claim of parity with other employees is also rejected, as there is no parity in illegality. 46. The writ petition is dismissed.