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2021 DIGILAW 39 (JHR)

Mamta Kumari v. State Of Jharkhand

2021-01-12

RAVI RANJAN, SUJIT NARAYAN PRASAD

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JUDGMENT : 1. With consent of the parties, hearing of the matter was done through video conferencing and there was no complaint whatsoever regarding audio and visual quality. 2. The instant appeal is listed under the heading for 'Admission' and with the consent of learned counsel for the parties, and the same is being disposed of at this stage itself. 3. This intra-court appeal is preferred against the order/judgment dated 17.10.2019 passed by learned Single Judge in W.P. (S) No. 6027 of 2016, whereby and whereunder the writ petition was dismissed declining to interfere with Order No. 707 dated 11.06.2011 passed by respondent no. 3 - District Superintendent of Education-cum-District Programme Officer, Jharkhand Education Project, Sahibganj, by which, the writ petitioner was terminated from services. 4. The brief facts of the case, which are required to be enumerated herein for proper adjudication of the lis, are as under: The writ petitioner was appointed as 'Rasoiya' (Cook) on 27.10.2005 at Kasturba Gandhi Residential Girls' School, Taljhari on contract basis on an honorarium of Rs. 4000/- per month initially for a period of one year, however, the aforesaid contract was renewed from time to time and finally on 09.12.2010, she was again entrusted with the work of 'Rasoiya' in the same school on an honorarium of Rs. 4450/- per month. While working as such, the writ petitioner submitted an application for leave before respondent no. 3 seeking leave from 19.05.2010 to 22.05.2010 on medical ground and again sought leave from 23.05.2010 to 25.05.2010 for some personal reason. The competent authority vide letter no. 649 dated 29.05.2010 sought for an explanation from the petitioner on the following charges: (a).The petitioner has committed misbehavior with that of the warden-cum-Teacher, Anita Kumari; (b).The petitioner has used unparliamentarily language with the then District Superintendent of Education. (c).Unauthorized absence of the petitioner from 19.05.2010 to 28.05.2010, resulting into mismanagement of the day to day affairs of the school; In response thereto, the writ petitioner submitted reply to the show cause, which was accepted and she was directed to resume her duties, but in the meantime since she fell ill and was advised to take bed rest, she made a request for leave from 26.08.2010 to 25.09.2010 and again sought leave from 26.06.2011 to 28.07.2011. In the meantime, the respondent-authority terminated the contract of the writ petitioner vide order dated 11.06.2011 on the ground that she remained absent unauthorizedly from 19.05.2010. Thereafter, the writ petitioner submitted application before the competent authority to allow her to join duty, but having not been allowed, she approached this Court by filing writ petition, being W.P. (S) No. 4136 of 2015, which was dismissed vide order dated 26.09.2016. The writ petitioner again filed writ petition being W.P. (S) No. 6027 of 2016, in which, order of termination dated 11.06.2011 was challenged but the writ petition was dismissed on the ground of delay and applicability of principles of res judicata, which is the subject matter of present intra-court appeal. 5. Learned counsel for the writ petitioner-appellant has submitted that the learned Single Judge had not travelled into the merit of the case rather on technicality the writ petition was dismissed, hence the same is not sustainable in the eye of law. 6. Mr. Kaushik Sarkhel, learned G.A. V appearing for the respondents-State and Mr. Krishna Murari, assisted by Mr. Raj Vardhan, learned counsel appearing for respondent no. 3 have jointly submitted that there was no occasion for the learned Single Judge to travel into the merit of the case as when there was delay in filing the writ petition that is after five years from the date of passing of order of termiantion and further since the learned Single Judge found the applicability of principle of constructive res judicata, therefore, the learned Single Judge thought it proper not to go into the issue of merit and dismissed the writ petition, which suffers from no infirmity. 7. We have heard learned counsel for the parties, perused the documents available on record as also the order passed by the learned Single Judge. There is no denial of the fact that the principle of Code of Civil Procedure is not strictly applicable in a proceeding under Article 226 of the Constitution of India but its principle is applicable. 7. We have heard learned counsel for the parties, perused the documents available on record as also the order passed by the learned Single Judge. There is no denial of the fact that the principle of Code of Civil Procedure is not strictly applicable in a proceeding under Article 226 of the Constitution of India but its principle is applicable. Herein, the writ petitioner on the date of filing of W.P. (S) No. 4136 of 2015 was knowing well about the order of termination dated 11.06.2011 but chosen not to assail the same, hence the learned Single Judge has held that even the cause of action was available to the writ petitioner, she chosen not to assail the same, simple meaning of the same is that the writ petitioner accepted the order of termination, and therefore, the learned Single Judge had considered the case on the basis of applicability of principle of constructive res judicata. We, therefore, are of the view that there is no reason to take a different view having been taken by the learned Single Judge since the writ petitioner was seeking direction from the writ Court permitting her to discharge duty as such, it was incumbent upon her to first question the order of termination dated 11.06.2011 but the reason best known to the writ petitioner said order of termination was not assailed and in that view of the matter, the wit petition being W.P.(S) No. 4136 of 2015 was dismissed vide order dated 26.09.2016. 8. Further, learned Single Judge has considered the ground of delay in challenging the order of termination that is delay of five years. The aforesaid reason can also not been disagreed by us as if the aggrieved approaches to the Court it is the onus duty of the aggrieved to approach the Court within a reasonable time since the writ Court is not meant for the loath litigant. Reference in this regard be made to the judgment rendered by Hon'ble Apex Court in New Delhi Municipal Council Vs. Pan Singh & Ors, (2007) 9 SCC 278 in particular paragraph 17, which is quoted hereunder as: 17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India). Pan Singh & Ors, (2007) 9 SCC 278 in particular paragraph 17, which is quoted hereunder as: 17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India). The Hon'ble Apex Court in State of M.P. & Ors vs. Nandlal Jaiswal & Ors, (1987) AIR SC 251 has observed that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and if there is inordinate delay on the part of the petitioner in filing the writ petitioner and such delay is not satisfactorily explained, the High Court may decline to interfere and grant relief in exercise of its writ jurisdiction. Emphasis was laid down on the principle of delay and laches stating that the High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and inconvenience in bringing the justice. In this context, further reference is made to the judgment rendered by Hon'ble Apex Court in Baljeet Singh (Dead) through Lrs. And Others Vs. State of U.P. and Others, 2019 15 SCC 33 wherein the land losers had approached the Court of law after inordinate delay seeking enhanced compensation which the Hon'ble Apex Court has refused to condone. In the aforesaid case, the Hon'ble Apex Court at paragraph 7 has held as under:- "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 nonexistent. 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 - 9 - 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 non-existent." Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The Court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. A writ court is required to weigh the explanation offered and the acceptability of the same. The Court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional Court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the Court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 9. We, on the basis of entirety of the facts and circumstances of the case and case laws referred herein above, are of the view that the order passed by the learned Single Judge suffers from no infirmity. 10. Accordingly, the instant appeal fails and is dismissed.