Amarjit Singh vs D.D. Gupta and Another

V.S. Deshpande, J.

(1) This writ petition seeks to challenge the validity of the award given by the Industrial Tribunal, Delhi, on 27th July 1974. The petitioner was

appointed on 24th September 1971 for a period of six months only. On 10th December 1971 his services were terminated with immediate effect.

This order of appointment is not on record but previous orders of appointment had stipulated that petitioner''s services were liable to be terminated

during or at the end of the service at any time and without assigning any reason whatsoever. The Industrial Tribunal held that the termination of the

services was not justified but granted to the petitioner the relief of only payment of one month''s wages instead of reinstatement. Hence this writ

petition.

(2) The writ petition was Filed on 15th July 1976, that is, only two years after the award was given. The first question which arises, Therefore, is

whether the writ petition was inordinately delayed and whether this Court, Therefore, should not entertain it. The petitioner has not given any real

Explanation for the delay except a sentence at the end of paragraph 12 of the petition which is as follows :-

The delay in filing the present writ petition is because of his absolute poverty and helplessness.

(3) The rule laid down by the Supreme Court in State of Madhya Pradesh Vs. Bhailal Bhai and Others, , is that a writ petition filed after the period

of limitation prescribed for a civil action would almost always be regarded as unduly delayed but the court may consider the delay unreasonable

even if it is filed within the period of limitation prescribed for a suit. In Ramesh Chandra v. Union of India, 2nd (1976)1 Del 633, a Division Bench

of this Court stated as follows ;-

In subsequent decisions the Supreme Court has observed that it is the duty of the petitioner to come to the Court as soon as possible and long

before the expiry of the period of limitation fixed for a suit which could be filed on such a cause of action.

As pointed out by Hidayatullah, C.J. in Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, a statutory period of six months has

now been prescribed in England as limitation for filing a petition to obtain an order in the nature of certiorari. The relief asked for by the petitioner

in the present case is in the nature of certiorari and mandamus. We have mentioned the rule of procedure in England to point out how expeditiously

the relief in the nature of certiorari has to be sought by a petitioner. The relief under Articles 226 and 227 of the Constitution is given on the well

established principles of the English Law governing the grant of such relief. It would appear, Therefore, that a writ petition seeking the relief in the

nature of certiorari or mandamus has to be filed with the utmost expedition and long before the expiry of any period of limitation that might be fixed

for a suit which could have been filed on such a cause of action if it were competent. The reason for the difference between the diligence expected

of an ordinary plaintiff in a civil court and of a petitioner under Article 226 is obvious. The plaintiff in a civil suit is seeking a remedy as of right

subject only to the law of limitation. The petitioner under Article 226 of the Constitution, on the other hand, seeks to invoke the extraordinary

jurisdiction of this Court which may be exercised by the Court only at its discretion. The relief is not available to the petitioner as of right. Professor

S. A. de Smith has pointed out why this period of six months prescribed in England is not to be regarded as too short. For, he says, the period of

limitation to obtain a writ of certiorari is comparable not to the period of limitation fixed for a suit but to one fixed for filing an appeal. For, the

petitioner may have already had a hearing before a quasi-judicial tribunal. The hearing which he seeks in the High Court under Articles 226 and

227 is under the supervisory jurisdiction of the High Court. On that basis, according to Professor Smith, the period of six months would be too

long and not too short a period (Judicial Review of Administrative Action. Third Edition, page 379 footnote 26).

(4) The guidelines for the exercise of the judicial discretion by this Court in a case like the present one would be as follows :-

(1)The petitioner ceased to be in employment on the 10th December 1971. The award of 27th July 1974 refused to him the relief of reinstatement.

The petitioner knew that the grant of the relief of reinstatement would in all probability entitle him to back wages from the 10th of December 1971.

With this knowledge it was incumbent on him to file this writ petition as soon as possible after the 27th July 1974. He waited for two years before

doing so. In such circumstances, it was observed as follows by the Supreme Court in Kamini Kumar Das Choudhury Vs. State of West Bengal

and Others, , as allows:-

The Division Bench (of the Calcutta High Court the appeal from whose decision was being dismissed by the Supreme Court) had also referred to

public interest or public policy which could be taken into account in cases where a public servant had come to a Court for an order in the nature of

mandamus for reinstatement. It had held that, in such cases, promptness on the part of the aggrieved servant is essential for invoking the

extraordinary jurisdiction of a High Court so that the State is not called upon to pay unnecessarily for the period for which the dismissed servant is

not employed by it. Indeed, delay may make the motives of the dismissed servant, who may have some technical ground to urge against the

dismissal, suspect.

We are of the view that the same public interest and public policy applies even when the termination of services of the petitioner is by an ordinary

employer and not by the State. For, it is against justice and public interest that an unhealthy practice should be encouraged by which an employee

whose services have been terminated can wait as long as possible and then file a writ petition with a view to earn back wages for the period for

which he has not worked for the employer at all.

(2)The Industrial Disputes Act has provided an exclusive Code for the settlement of industrial disputes. This is why an award becomes final after

publication u/s 17(2) of the said Act. It: is true that in exercise of the extraordinary jurisdiction under Articles 226 and 227 of the Constitution, this

Court can destroy the finality of the award. But the reason underlying the finality is certainty of industrial adjudication necessary to ensure industrial

peace. This Court would, Therefore, be loath to interfere with the finality of an industrial award except for good reasons.

(3)The merits of the case of the petitioner would not be considered till the preliminary question as to his conduct in coming to the Court is first

considered. In Kamini Kumar Das Choudhury v. State of West Bengal, referred to above, the petitioner had explained the delay in filing the writ

petition as being due to his having gone to the Andaman Islands or having fled the country through fear of prosecution by Respondent 3. But the

Single Judge as also the Division Bench of the Calcutta High Court and the Supreme Court were not satisfied merely with the ipse dixit of the

petitioner. They wanted some corroboration of the allegations made by the petitioner. The same reasoning applies to the present case because here

also there is merely a bald assertion in a single sentence of the cause of delay by the petitioner which is also not corroborated. Further, the merits

of the case of the petitioner in the case of Kamini Kumar Das Choudhury were good. The Division Bench of the Calcutta High Court had actually

observed as follows :-

If the appellant before us had been able to give a satisfactory Explanation as to why he could not move the Court within a few weeks after June

1952, we would have felt disposed to allow the appeal.

(5) We are of the view that the petitioner has hardly any case on merits. We note that he was appointed for a very short time and it is highly

doubtful whether reinstatement would have been regarded as the normal remedy for the termination of service which had been for such a short

term. Nevertheless, we are precluded from going into the merits of the case because the petitioner has failed on the threshold to show his bona

fides in coming to the court so late after the award was given.

(6) For the above reasons, the writ petition is dismissed in liming.