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2021 DIGILAW 278 (JHR)

Kanhaiya Prasad Singh v. State of Jharkhand

2021-03-08

DEEPAK ROSHAN

body2021
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties through V.C. 2. The instant writ application has been filed by the petitioner praying therein for quashing the order dated 30.05.1995, passed by the respondent no. 5 in departmental proceeding Case No. 2/1990 whereby the petitioner has been terminated from service. The petitioner has further prayed for quashing the order dated 05.06.1996, passed by the respondent No. 4 whereby the appeal filed by the petitioner, was dismissed and order of termination was sustained. The petitioner has also challenged the entire departmental proceedings. 3. At the outset, Ms. Ruchi Rampuria A.C. to Sr. S.C. II for the respondent-State raised a preliminary objection on the ground of delay and laches. She submits that the order of termination is of the year 1995 and the appeal was rejected way back in the year 1996 itself and the petitioner knocked the door of this Court in the year December, 2006. As such, this writ application should be dismissed without going into merits of the case. 4. Mr. Samavesh Bhanj Deo, learned counsel for the petitioner tries to impress this Court by submitting that the petitioner had filed a revision/memorial and the same has not been dismissed; as such he was under reasonable presumption that the moment his revision/memorial will be dismissed he can challenge the same before this Court. He further submits that it is a very good case on merit, however admittedly; there is a delay more than 10 years from the date of appellate order. He relied upon the judgment passed in the case of Tukaram Kana Joshi and Others vs. Maharashtra Industrial Development Corporation and Others, (2013) 1 SCC 353 and submits that the Hon’ble Apex Court held that State, especially a welfare State should not raise this type of ground and Court is also required to exercise judicial discretion. Relevant Paragraph Nos. 12, 13 and 14 of the aforesaid judgment are quoted herein-below: “12. The State, especially a welfare State which is governed by the rule of law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. 13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the courts to exercise their powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party’s defence must be tried upon principles substantially equitable. 14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners.” 5. Having heard learned counsel for the parties and after going through the documents available on record; it appears that the petitioner was dismissed from service on 30.05.1995 and thereafter, he preferred an appeal which was also rejected vide order dated 05.06.1996. Though the petitioner has taken specific stand at paragraph 13 of the writ application that he has also filed a revision application; however, there is no specific averment that when the said revision application was filed since as per Rule 853 of Jharkhand Police Manual, the memorial/revision should be filed within Six months from the date of rejection of appeal. 6. At the cost of repetition; neither any date has been mentioned in the writ application that on which date revision/memorial has been preferred; nor has any copy of the same been annexed with this writ application. 7. In the case of Baljeet Singh through Legal Rep. and Others vs. State of U.P. (2019) 15 SCC 33 the Hon’ble Apex Court has held that it is a very settled principle of jurisprudence that a right not exercised for a long time is non-existent. Paragraph 7 of the aforesaid judgment is quoted herein-below: “7. The matter requires examination from another aspect viz. laches and delay. It is a very recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases, courts have coined the doctrine of laches and delay as well as doctrine of acquiescence and non-suited the litigants who approached the court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases, courts have coined the doctrine of laches and delay as well as doctrine of acquiescence and non-suited the litigants who approached the court belatedly without any justifiable explanation for bringing the action after unreasonable delay. In those cases, where the period of limitation is prescribed within which the action is to be brought before the court, if the action is not brought within that prescribed period, the aggrieved party loses remedy and cannot enforce his legal right after the period of limitation is over, however, subject to the prayer for condonation of delay and if there is a justifiable explanation for bringing the action after the prescribed period of limitation is over and sufficient cause is shown, the court may condone the delay. Therefore, in a case where the period of limitation is prescribed and the action is not brought within the period of limitation and subsequently proceedings are initiated after the period of limitation along with the prayer for condonation of delay, in that case, the applicant has to make out a sufficient cause and justify the cause for delay with a proper explanation. It is not that in each and every case despite the sufficient cause is not shown and the delay is not properly explained, the court may condone the delay. To make out a case for condonation of delay, the applicant has to make out a sufficient cause/reason which prevented him in initiating the proceedings within the period of limitation. Otherwise, he will be accused of gross negligence. If the aggrieved party does not initiate the proceedings within the period of limitation without any sufficient cause, he can be denied the relief on the ground of unexplained laches and delay and on the presumption that such person has waived his right or acquiesced with the order. These principles are based on the principles relatable to sound public policy that if a person does not exercise his right for a long time then such right is nonexistent.” 8. In view of the aforesaid discussions; the instant writ application, is hereby, dismissed without entering into merits of the case on the ground of delay and laches.