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Judgment
Srinivasan, J.—A introduction: This application is to review the order in W.A. No. 1256 of 1992 dated 17.12.1993 and for setting aside the
judgment as illegal, incompetent and without jurisdiction. The petitioner herein (hereinafter referred to as ''the applicant'') was not a party to the
appeal. He obtained permission to file the present review application in C.M.P. No. 6622 of 1995. The Bench which granted permission on
27.4.1995, made it clear in the order that the same was subject to the rights of the respondents to object to the same, if so advised.
The third respondent in the application is the contesting respondent and he will be referred to herein as ''the third respondent''. He was the
petitioner in W.P. No. 18609 of 1991, which has generated the writ appeal and the present application. The first respondent herein is the
Commissioner of Collegiate Education, while the second respondent is the Management of S.B.K. College, Aruppukkottai. The second
respondent is a private aided college.
B. History: The third respondent joined the second respondent college in the year 1971 as Assistant Professor, Physical Education. He applied
for leave on loss of pay for two years from 6.3.1981 to 5.3.1983 which was sanctioned by the then Secretary to the College. The Director of
Collegiate Education came to know that the third respondent was working abroad without getting prior permission. Hence, he instructed the
Management to take action against the third respondent for going abroad without getting prior permission from the Director - Vide his letter dated
6.8.1982 - and also instructed the Management not to permit the third respondent to rejoin duty without getting prior permission from the Director.
An explanation was called for from the third respondent by the Secretary to the College by his letter dated 4.9.1982. The third respondent sent a
reply on 19.10.1982 which was forwarded to the Director of Collegiate Education. He referred to his registration with the Foreign Assignment
Section of Government of India through the College in 1977 and obtaining NOC from the college for his passport. There was, however, no
explanation for working in a foreign country without getting the prior permission of the Director of Collegiate Education.
The third respondent applied for extension of leave by letter dated 9.2.1983 for the period 6.3.1983 to 5.7.1983. The Secretary to the College
sought for a clarification from the Director of Collegiate Education whether the extension could be sanctioned. The reply was in the negative. In the
meanwhile, the Secretary wrote a letter on 16.2.1983 to the third respondent informing him that he was not in a position to sanction the extension
of leave until he received a reply from the Director of Collegiate Education, Madras. The third respondent applied for further extension of leave on
loss of pay from 6.7.1983 to 5.7.1984. That was also not sanctioned. Inspite of the fact that leave on loss of pay was not sanctioned beyond
5.3.4983, the third respondent continued to be absent from duty. The Director of Collegiate Education in his Proceedings Rc. No. 19386/E1/84,
dated 26.4.1984 informed the Management of the College that extension of leave on loss of pay could not be granted to the third respondent. The
third respondent requested the Management by his letter dated 15.5.1984 to permit him to join duty on 6.7.1984. The Secretary to the College
sent a reply on 14.6.1984 informing him that he could not join duty as the permission of the Director of Collegiate Education had not been given
therefor.
The Director of Collegiate Education by his letter dated 8.8.1984 in L. Dis. No. 12802/F2/84 instructed the Management to take disciplinary
action against the third respondent for working abroad without getting prior permission from the competent authority. Pursuant thereto, the
Management served a charge memo dated 7.1.1985 on the third respondent calling upon him to show cause why disciplinary action should not be
taken against him. Five charges were framed against him regarding his leaving the country and accepting a job outside the country without prior
permission or sanction therefore from the competent authority. The third respondent sent a reply on 27.1.1985. There was no explanation in the
said reply for not getting prior permission of the authorities to go abroad. There was a reference therein to the third respondent meeting the
Secretary to the College on 5.7.1983 and the latter''s refusal to permit him to join duty on 6.7.1983. But, in the affidavit filed in support of the writ
petition, reference is made to a letter dated 5.7.1983 alleged to have been written by the third respondent to the Secretary expressing his intention
to rejoin duty. There is no reference in the said affidavit to a personal meeting on 5.7.1983. The allegation is that there was no reply to his letter
dated 5.7.1983. It is further alleged in the said reply that on 5.7.1983 itself the third respondent personally handed over an application for
extension of leave period to the Principal in his office under the guidance of the Secretary to the College.
In the meanwhile, the post of Physical Director/Assistant Professor, Physical Education was filled up in the first instance by deputation of one G.
Inbarajan from another college under re-deployment scheme between 22.12.1982 and 28.2.1984. Thereafter, the Management of the College
obtained permission of the Director of Collegiate Education to fill up the vacancy by appointing a permanent incumbent. Accordingly, the applicant
herein was appointed on 12.7.1985 with effect from 15.7.1985 as Assistant Professor, Physical Education. He was confirmed on 14.11.1985
with the approval of the Educational authorities. He was functioning as such continuously since then.
After the receipt of the explanation dated 27.1.1985 sent by the third respondent, the Management of the College was making appropriate
enquiries and gathering information in order to take proceedings against the third respondent by way of disciplinary action. The Secretary to the
College sent a communication dated 3.1.1989 to the Director of Collegiate Education detailing the steps taken by the College for initiating
proceedings against the third respondent. The third respondent sent a communication on 27.3.1989 to the Management requesting for necessary
action to facilitate his joining duty at the earliest. He also sent a representation to the Consul (Labour), Consulate General of India, Dubai (U.A.E.)
on 15.4.1989 which was forwarded to the Secretary to the College along with a covering letter dated 19.4.1989. Even in the said representation
the third respondent had not chosen to given any explanation as to why he did not get the prior permission of the concerned authority for working
abroad, after taking leave on loss of pay for personal reasons. On 17.5.1989 the third respondent wrote to the Secretary to the College informing
him that he would meet the addressee in the first week of July, 1989 to enlighten the matter. It should be mentioned that till that date, the third
respondent had not given his address at Dubai in any of his communications, but on the other hand had given only some address or other in India,
as if he was staying in India during that period. In the said letter, for the first time, the third respondent alleged that he availed extraordinary leave
on loss of pay for personal affairs from the Managing Board of the College, that he explained his desire to go to Dubai on an assignment to the
members of the Managing Committee on 3.3.1981 in the college premises and that the Managing Board had sanctioned his leave after being
convinced. Such an averment was not found in any of the earlier communications sent by the third respondent including his reply dated 27.1.1985
to the charge memo dated 7.1.1985.
On 10.7.1989 the third respondent wrote to the Secretary to the College another letter in which he took a different and inconsistent stand. He
alleged therein that as the period of leave was long, the then Secretary asked him to meet him in person prior to the sanctioning of the leave and he
explained the reason for his leave that he was leaving for Dubai to accept an engagement in an Indian School and that on account of the generosity
and helping attitude of the then Secretary, his leave was sanctioned. According to him, he worked in the Indian School at Dubai purely as a
teacher. What follows thereafter in the said letter is quite significant and proves that his version that he informed the Secretary or the Managing
Board of his intention to take an assignment in Dubai before proceeding on leave is false. It is stated as follows:
As I did not seek any different employment other than the teaching profession in which I was engaged here, I felt it was not so necessary to
mention this in detail, because the same profession I continued with an intention to come back. Gaining more experience outside India in the
academic field which will be of immense help in my work here as an Assistant Professor. Hence, I considered this as a personal affairs of mine,
and accordingly I applied for leave on personal affairs. I applied for the extension of leave which was neither refused nor I was recalled to rejoin
duty. Hence, I was forced to believe that there was nothing wrong in availing the leave further and hence I stayed at Dubai worked as a Teacher in
the Indian School for some more time. Before the expiry of two years leave, I was informed that the College has to obtain permission from the
Director of Collegiate Education prior to my rejoining duty in the SBK College. Even though restriction was imposed regarding my rejoining duty,
there was no direction to the effect that the leave should not be extended, and as a matter of fact, the extension of leave was neither rejected nor I
was recalled to rejoin duty. It was under these circumstances, I continued my stay at Dubai.
It is evident from the above passage that the third respondent did not inform the Management of the College or the Secretary about his intention
to work abroad in Dubai. It is also evident from the said passage that he continued to work in the school at Dubai even on the date of the said
letter. In the same letter he has made a reference to the appointment of the applicant as Assistant Professor, Physical Education and observed that
the said appointment must be only a temporary appointment and he can only be a substitute having the liability to leave the post as and when he
rejoined duty and that the appointment of the applicant can never be a hindrance in any manner from any point of view against his rejoining duty.
The letter discloses that the third respondent was taking legal advice and was laying a foundation for putting forward technical contentions. There
were subsequent letters from the third respondent to the Secretary to the College on 21.9.1989, 15.1.1990, 13.3.1990, 31.5.1990 and 9.3.1991
requesting the latter to permit him to rejoin duty. But, it is seen from these letters that the third respondent continued to be in Dubai throughout and
even on the date of last of the said letters. He would appear to have returned to the country only thereafter as is evident from his letter dated
22.7.1991 in which he has requested for permission to rejoin duty. As he was not permitted to do so, he filed the present writ petition on
1.11.1991.
C. Proceedings in writ petition and writ appeal: The present applicant was not made a party to the writ petition in spite of the third respondent
being aware of his appointment as stated earlier. In the affidavit filed in support of the writ petition, after referring to his employment in the Indian
School, Dubai, as a Teacher, the third respondent has stated that he felt that it was not necessary to mention the same in detail to the authorities as
he did not seek any different employment other than teaching profession and that gaining more experience outside India in the academic field would
be of immense help in his work in the College as Assistant Professor. Therefore, according to him, he considered it as a personal affair of his and
accordingly, he applied for leave. He added that he was forced to believe that there was nothing wrong in availing the leave further and he,
therefore, stayed at Dubai, and worked as a teacher for some more time. It is also stated that even though restriction was imposed regarding his
rejoining duty, there was no direction to the effect that the leave should not be extended and as a matter of fact, the extension of leave was neither
rejected nor was he recalled to join duty and in those circumstances, he continued to stay at Dubai. With regard to his reply dated 27.1.1985 to
the Charge Memo dated 7.1.1985, it is stated in the affidavit that the management is deemed to have accepted his reply and dropped the
disciplinary proceedings. Stating that the action of the College in preventing him from joining duty is in contravention of the provisions of the Tamil
Nadu Private Colleges (Regulation) Act, 1976 (Act 19 of 1976), he prayed for issue of writ of mandamus directing the respondents to allow him
to join duty in the College as Physical Director with all attendant benefits.
The writ petition was dismissed in limine by a learned single Judge of this Court on three grounds, (1) the writ petitioner was guilty of laches,
(2) his conduct and attitude did not entitle him to get the relief and (3) there was no failure on the part of the respondents in performing any of their
statutory duties.
The third respondent filed an appeal in W.A. No. 1256 of 1992. Notice of motion was ordered in the appeal to the respondents therein. The
Director of Collegiate Education filed a detailed counter affidavit as well as a typed sets of relevant records. The Secretary to the College remained
absent. The appeal was heard by a Division Bench and disposed of by order dated 17.12.1993. The Bench has taken the view that the third
respondent herein continued to be in service in the College and there was no impediment for the management to take him back in service. The
Bench held that the third respondent was not guilty of laches in approaching the court under Article 226 of the Constitution of India. The Bench
also observed that the third respondent herein had gone abroad on foreign assignment only with the knowledge of the Secretary to the College.
The Bench has also observed that the inaction on the part of the College in not taking back the third respondent in service would be depriving him
of his right to join back in service and earn his livelihood and as such any action on the part of the college would involve civil consequence
depriving his right to livelihood, which is implicit under Article 21 of the Constitution of India. On the above reasoning, the Bench allowed the
appeal.
Pursuant to the judgment in the appeal, the Secretary to the College sent a communication to the third respondent herein on 4.3.1995 directing
him to rejoin duty on or before 10.3.1995 as Physical Education Director. A copy of it has been forwarded to the applicant herein with a request
to him to relieve from duty on the date when the third respondent joins duty. Thus, the applicant herein was ousted from service as a direct
consequence to the judgment of this Court in the writ appeal. According to the third respondent, he joined duty on 8.3.1995, but was suspended
by an order dated 17.3.1995 by the management. It is also brought to our notice that a charge memo has been issued to the third respondent on
29.3.1995 and that he has filed two writ petitions challenging the said proceedings of the management.
D. Contentions: After the applicant herein was relieved from duty, he presented his Review Application on 9.3.1995 along with C.M.P. No.
6622 of 1995 for leave to file the application, as he was not a party to the writ petition or writ appeal. As stated earlier, leave was granted on
27.4.1995 and notice was directed to the respondents herein in the Review Application by order dated 11.7.1995. In this application all the three
respondents have entered appearance and placed their submissions before the court.
At the outset, the third respondent herein has filed a memo of written objections questioning the locus standi of the applicant and the
maintainability of the petition for review. Arguments have also been advanced before us on the merits of the writ appeal and the third respondent''s
attempt has been to sustain the judgment.
E. Locus standi: The first question that arises for consideration is whether the applicant has locus standi to maintain this application for review.
Learned Counsel for the third respondent has submitted that the applicant was appointed only as a substitute in the place of his client and once his
client has opted to rejoin duty, the applicant has no right to oppose the same as the dispute is entirely between the third respondent and the
management of the College. According to learned Counsel, the third respondent has never ceased to be an employee of the College as his services
were not terminated in the manner prescribed by law and when he seeks to enforce his right to join duty, there is no necessity for him to take
cognizance of any person who has been working as a substitute in his post during the leave vacancy, with the result that the applicant has no locus
standi whatever to challenge the mandamus obtained by the third respondent. According to learned Counsel, in Service Jurisprudence, subsequent
appointments will not be a defence to the enforcement of an employee''s rights. Reliance is placed on certain observations found in The Punjab
National Bank Ltd. Vs. Its Workmen, . The Supreme Court has, in that case, held that the Bank did not choose to prove the factum of
employment of additional hands during the relevant period and after pointing out that it did not appear that the said plan was urged as a separate
plea against the order of reinstatement before the Appellate Tribunal, observed:
In any case, in the absence of satisfactory materials it would be difficult to deal with this plea on the merits. Besides, if the Bank has failed to
establish its specific case against any of the 136 employees, there is no reason why the normal rule should not prevail and the employees should not
got the relief of reinstatement. The mere fact that the bank may have employed some other persons in the meanwhile would not necessarily defeat
such a claim for reinstatement.
The said observation of the court must be understood in the context of the facts and the finding given by the court in the earlier part of the passage.
Learned Counsel has drawn our attention to a judgment of a learned single Judge of this Court in T.K. Sudhindran v. P. Jothi, Secretary,
College Committee (1984) 2 S.L.J. 651, in which the right of the management to recall an earlier resolution passed by it and reinstate the Principal
of the College, who was previously dismissed, was upheld. From the facts of the case, it is seen that the management of the College recalled its
resolution during the pendency of a proceeding initiated by the dismissed Principal, whose claim was upheld therein, by a Division Bench of this
Court in Dr. Madan Mohan Rao Vs. The State of Tamil Nadu and Another, . The ruling in that case does not in any manner help the third
respondent herein, as it turned on the facts of that case.
Reliance is placed on the judgment of the Supreme Court in Ganpat Roy and Others Vs. Additional District Magistrate and Others, , wherein it
was held that a party who has no right to appear at the original hearing of an application, cannot have a right of review on an appeal against an
order passed on that application. The ruling has no relevance in this case as, in our opinion, the applicant herein was a necessary party in the writ
petition as well as the writ appeal in these proceedings and he ought to have been impleaded as a party and given an opportunity to contest the
same. It is rightly pointed out by learned Counsel for the applicant that the ruling in Prabodh Verma and Others Vs. State of Uttar Pradesh and
Others, , would apply and the applicant herein should have been made a party in the writ petition as any order in favour of the writ petitioner would
directly affect the rights of the applicant and as a matter of fact, the order passed in the writ appeal in favour of the third respondent herein has led
to the ousting of the applicant from service. It is, therefore, futile to contend that, the applicant has no locus standi to maintain the application for
review. Our attention is drawn to the judgment of the Supreme Court in Ram Janam Singh Vs. State of Uttar Pradesh and another, , by learned
Counsel for the applicant. The Court held that though the appellant in that case was not impleaded as a party to the writ application, he was
directly affected by the order in the writ application and he was, therefore, entitled to file the Special Leave Petition. The court referred to the
judgment in Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, , and held that the appellant ought to have been impleaded as a
party to the writ petition. The court proceeded to hold that even if the stand taken by the respondent therein that no relief was sought against the
appellant in that case and there was no necessity to implead him as a party was accepted, the appellant before court had a locus standi to challenge
the judgment of the High Court, although he was not a party to the writ petition. The ratio of the said judgment will apply on all fours in the present
case. We hold that the applicant has locus standi to maintain the review application.
F. Maintainability of Review Application: The objection raised by the third respondent is that the Division Bench has disposed of the matter on
the facts of the case holding that he was not guilty of any laches and that he was entitled to be reinstated in service. It is argued that another
Division Bench of this Court which has co-ordinate jurisdiction, cannot sit in judgment over the correctness of the judgment in the appeal, as it is
entirely a decision on the facts. The contention is that the remedy of the applicant, if at all, is only to approach a higher forum in order to challenge
the correctness of the judgment in the appeal and not to approach this Court. It is submitted that the judgment does not suffer from any error
apparent on the face of the record.
The general principles prescribing the parameters of a review application are well settled. The question has also considered with reference to
proceedings under Article 226 of the Constitution of India. In Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, , the court after
referring to an earlier judgment, said:
It is true as observed by this Court in Shivdeo Singh v. State of Punjab AIR 1963 S.C. 1909, there is nothing in Article 226 of the Constitution to
preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or
to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review
may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the
knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where
some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised
on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be
confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.
In Devaraju Pillai Vs. Sellayya Pillai, , the Supreme Court held that a single Judge of this Court had no jurisdiction to upset the judgment of
another single Judge in a Review Application, merely because he took a different view on a construction of the document involved in that case. In
the earlier judgment of the court, the document was held to be a deed of settlement. In the review application, which came before another Judge as
the Judge who decided the second appeal earlier was not available, held that it was a will. The Supreme Court held that the application for review
was entirely misconceived and the learned Judge who entertained the application totally exceeded his jurisdiction.
In A.R. Antulay Vs. R.S. Nayak and Another, , the court referred to the decision of a Privy Council in Issac v. Robertson (1984) 3 All E.R.
140 and pointed out that orders made by a Court of unlimited jurisdiction in the course of contentious litigation were regular or irregular and if an
order was regular, it could be set aside only by an appellate court and if it was irregular, it could be set aside by the same court on an application
being made to it either under the rules of that court or ex debito justitiae, if the circumstances warranted. On the facts of that case, the court said
that it was correcting an irregularity committed by the court earlier, not on construction or misconstruction of a statute, but on non-perception of
certain provisions and certain authorities which would amount to derogation of constitutional rights of the citizen. The ruling is a very significant one
and if there is a case of non-perception of certain provisions of law and certain authorities which would amount to derogation of the constitutional
right of a citizen, an application for review is entertainable and in cases where principles, of natural justice have been violated, the court can act suo
motu ex debito justitiae.
In S. Nagaraj v. State of Karnataka (1993) 4 S.C.C. 595, the court emphasised the paramount consideration of justice in each case according
to the facts and circumstances and said:
Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the
court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in
Public Law. Even the law bonds before justice. Entire concept of writ jurisdiction exercised by the higher courts is found on equity and fairness. If
the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction, but for the erroneous assumption which
in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error.
Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification depending on if it is of fact
or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the
mistake is of the court. In Administrative Law the scope is still wider. Technicalities apart if the court is satisfied of the injustice then it is its
constitutional and legal obligation to set it right by recalling its order.
....
Review literally and even judicially means reexamination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human
fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions
both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory
provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such
power to avoid abuse of process of miscarriage of justice.
....
Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing
finality.
In Commissioner of Sales Tax, J and K and Others Vs. Pine Chemicals Ltd. and Others, , the court held that if interpretation of law adopted
by a Bench is inconsistent with earlier decisions delivered by a co-ordinate Bench and a larger Bench, it would amount to an error apparent on the
face of record. It is needless to say that if a decision of a higher Court is inconsistent with the decisions of the highest court, it is an error apparent
on the face of the record.
In Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, , the Supreme Court said that an error apparent on the face of record must be
such an error which must strike one or more looking at the record and would not require any long drawn process of reasoning on points where
there may conceivably be two opinions.
The following principles can be culled out from the above rulings:
(1) If the judgment is vitiated by an error apparent on the face of the record in the sense that it is evident on a mere looking at the record without
any long-drawn process of reasoning, a review application is maintainable.
(2) If there is a serious irregularity in the proceeding such an violation of principles of natural justice, a review application can be entertained.
(3) If a mistake is committed by an erroneous assumption of a fact which if allowed to stand, would cause miscarriage of justice, then also an
application for review can be entertained.
It is not necessary to point out that the above principles are applicable de hors the provisions of Order 47, Rule 1 of the Code of Civil Procedure.
The requirements of the principles set out above are fully satisfied in this case.
G. Violation of Natural Justice: The applicant herein is a party who is directly affected by the judgment in the writ appeal. The third respondent
was fully aware of the appointment of the applicant. The fact was also brought to the notice of the court by the Director of Collegiate Education in
the counter-affidavit filed in the writ petition at the appellate stage. The court ought to have taken note of the fact that any decision in favour of the
writ petitioner would result in ousting the applicant herein from service and he was a necessary party to the said proceeding. We have already
referred to the judgment of the Supreme Court in Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, . It is categorically held in
that case that the High Court should not proceed with a writ petition without insisting on persons who would be vitally affected, being made
respondents. If such persons are large in number and it is difficult to implead them individually, at least some of them could be joined as
respondents in a representative capacity. The Court has clearly directed that if the writ petitioner refuses to so join them, the High Court ought to
dismiss the petition for non-joinder of parties. Unfortunately, in this case, the Division Bench did not take notice of the law laid down by the
Supreme Court in Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, and insist upon the applicant herein being impleaded as a
party to the proceedings. The Court ought to have dismissed the appeal for nonjoinder of the applicant herein. The failure on the part of the Court
to give an opportunity to the applicant herein to appear in the proceedings and be heard, is undoubtedly violation of principles of natural justice.
There is no merit in the contention of the third respondent that the applicant cannot put forward any defence independent of the Management. The
remedy under Article 226 of the Constitution of India is equitable and discretionary and the applicant could have put forward some contentions
which might not have been available to the Management and requested the Court to consider the same.
H. Error apparent on the face of the record: We have no hesitation in this case to hold that the judgment of the Division Bench is vitiated by an
error apparent on the face of the record. The opinion of the Division Bench that there are no laches on the part of the third respondent herein in
seeking to approach the Court under Article 226 of the Constitution of India, is on the face of it erroneous. There is no substance in the contention
of the third respondent that the said opinion would amount to a finding of fact arrived at after considering the relevant facts of the case. The
judgment of the Division Bench under review does not indicate anywhere whether the Bench took note of the various facts set out earlier by us and
which were all available to it on record. Suffice it to point out that the Division Bench has not given any reason for holding that there are no laches
on the part of the third respondent herein. The fact that the third respondent approached the Court more than nine years after he was informed by
the Secretary to the College in his letter 18/82-83/411 that the Director of Collegiate Education had informed the Management of the College that
the third respondent should not be allowed to join duty without the prior permission of the Director, more than seven years after the letter dated
14.6.1984 from the Secretary to the College to the third respondent that he could not be allowed to join duty on 6.7.1984 and more than six years
after the applicant herein was appointed as Assistant Professor, Physical Education. The only explanation given by the third respondent in his
affidavit filed in support of the writ petition for the inordinate delay in filing the same is that he had been repeatedly writing to the College and the
educational authorities that he wanted to rejoin duty. It has been held in a catena of decisions of the Supreme Court that the making of
representations again and again to the same authority would not absolve a party from the consequence of undue delay and save him from the
doctrine of laches.
Vide:
Rajalakshmiah v. State of Mysore AIR 1967 S.C. 993 : (1967) 1 S.C.W.R. 272 : (1962) II L.L.J. 434 : (1967) 2 S.L.R. 70 : (1967) 2 S.C.J.
4164.
Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, .
Jagdish Narain Maltiar Vs. The State of Bihar and Others, .
Amrit Lal Berry and Another Vs. Collector of Central Excise, New Delhi and Others, .
State of Orissa and Others Vs. Shri Arun Kumar Patnaik and Others, .
State of Orissa Vs. Pyarimohan Samantaray and Others, .
Gian Singh Mann Vs. High Court of Punjab and Haryana and Another, .
G.C. Gupta and Others Vs. N.K. Pandey and Others, and
High Court of M.P. Vs. Mahesh Prakash and others, .
It is not necessary for us to quote from any of the above judgments as the principles are too well settled.
In a recent judgment in State of Maharashtra Vs. Digambar, , the Supreme Court has reiterated the principle and laid down the law in very
clear terms as follows:
Coming to the exercise of power conferred upon the High Court under Article 226 of the Constitution for issuing orders, directions or writs for
''any purpose'', such power is discretionary being a matter well-settled, cannot be disputed.
Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and
reasonable, admits of no controversy. It is for that reason, a person''s entitlement for relief from a High Court under Article 226 of the Constitution,
be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon
unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such
power, when he approaches it with unclean hands or blame-worthy conduct.
Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief
which disentitled him for grant of such relief was explained succinctly by Sir Darnes Peacook, long ago, in Lindsay Petroleum Co. v. Prosper
Armstrong (1874) 5 P.C. 221, 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 or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always
important in such cases, 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 it relates to the remedy.
Whether the above doctrine of laches which disentitled grant of relief to a party by Equity Court of England, could disentitle the grant of relief
to a person by the High Court in exercise of its power under Article 226 of our Constitution, when came up for consideration before a Constitution
Bench of this Court in The Moon Mills Limited v. M.R. Meher, President, Industrial Court, Bombay and Ors. AIR 1967 S.C. 1450, it was
regarded as a principle that disentitled a party for grant of relief from a High Court in exercise of its discretionary power under Article 226 of the
Constitution.
A three Judge Bench of this Court in Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service, Amravati and
Others, , reiterated the said principle of laches or undue delay as that which applied in exercise of power of the High Court under Article 226 of
the Constitution.
Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for
granting relief to a person including a citizen without considering his dis-entitlement for such relief due to his blame-worthy conduct of undue delay
or laches in claiming the name, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its
sound judicial discretion, but as that made arbitrarily.
Unfortunately, in this case the Division Bench which decided the writ appeal has completely ignored the principles laid down by the Supreme
Court on the doctrine of laches and wrongly held that the third respondent is not guilty of any laches. Thus, this is a clear case of non-perception of
the law laid down by the Supreme Court and totally ignoring the pronouncements of that Court. The judgment of the Division Bench under review
is wholly inconsistent with the decisions of the Supreme Court.
Blame Worthy Conduct: We have already referred to the fact that one of the reasons given by the learned single Judge for dismissal of the writ
petition in limine was the conduct and attitude of the writ petitioner in getting the extraordinary leave and leaving the country for foreign assignment
without proper intimation to the concerned authorities. The Division Bench has not chosen to advert to this matter at all. On the other hand, the
Division Bench has made an erroneous assumption that the third respondent herein had gone abroad on foreign assignment only with the
knowledge of the Secretary to the College. We have referred to the fact that such an allegation is put forward by the third respondent for the first
time in his letter dated 17.5.1989 addressed to the Secretary to the College. Before that, they even when he was called upon to explain by the
Secretary'' s letter dated 4.9.1982 as to why he did not take the prior permission of the concerned authorities to go abroad, he did not state in his
reply that he had taken the permission of the Secretary or the Management. We have also adverted to the inconsistency in the stand taken by him.
It is not necessary for us to dilate much on that aspect of the matter. Even in the affidavit filed in support of the writ petition he has given two
different versions. While in one place he has stated that he met the Board of Management, in another place he has alleged that he met the Secretary
to the College and informed him of his foreign visit. In any event, the admitted fact remains that he did not have prior sanction for the extension of
leave on loss of pay after 5.3.1983. The mere fact that he had applied for extension of leave again and again would not entitle him to stay away
from duty when there was no specific sanction therefor. Even assuming that there was no express rejection of his application for leave, it cannot
amount to prior sanction of such leave. Admittedly, according to the Code of Conduct prescribed for teachers and other persons employed in a
College, as set out in Annexure I to the Tamil Nadu Private Colleges (Regulation) Rules, 1976, he is not entitled to absent himself from his duties
without prior permission. Even if he states that he was never informed by the authorities concerned that his application for exemption of leave was
not sanctioned, it cannot be contended by him by any stretch of imagination that he absented himself from duty with prior permission of the
authorities. That conduct of his is sufficiently blame-worthy to throw out his writ petition. The Division Bench has not adverted to that aspect of the
matter at all and thus, the judgment is vitiated on the face of the record. We have already extracted the relevant passage in the judgment of the
Supreme Court in State of Maharashtra Vs. Digambar, , wherein it has been categorically stated that the entitlement of relief under Article 226 of
the Constitution has to necessarily depend upon the blameworthy conduct of the person seeking relief.
J. Article 21 of the Constitution: Learned Counsel for the third respondent repeatedly contended that his client''s fundamental right under
Article 21 of the Constitution has been affected considerably by the failure of the Management of the College to take him back in duty. There is a
reference in the Division Bench judgment under review to Article 21 of the Constitution of India and the likelihood of the third respondent being
deprived of his fundamental right under the said article in the event of his not being allowed to rejoin duty. In that connection, learned Counsel for
the third respondent has placed reliance on the judgment of the Supreme Court in D.K. Yadav Vs. J.M.A. Industries Ltd., . It is observed in that
case that an order of termination of service of an employee visits the civil consequences of jeopardising not only his livelihood but also career and
livelihood of dependents and therefore before taking any action putting an end to the tenure of an employee fair play requires that a reasonable
opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. The principle has no
application whatever in this case in view of the facts set out earlier. The third respondent, who has approached this Court invoking the
extraordinary jurisdiction under Article 226 of the Constitution of India, has to satisfy this Court that he has come with clean hands. When, as
pointed out earlier, his conduct is blameworthy, he cannot claim that he is entitled to get relief because of the provisions of Article 21 of the
Constitution of India. If anybody is to be blamed for the third respondent''s not being able to rejoin duty, it is only himself. He has brought it on his
own head by his own conduct. Having enjoyed an employment outside India, without the prior permission of the educational authorities for more
than a period of nine years, it still lies in the mouth of the third respondent that he will be deprived of the benefit under Article 21 of the Constitution
of India if he is not allowed to rejoin the College. For the purpose of this contention it should be remembered that the applicant''s right under
Article 21 of the Constitution of India is of equal importance, if not more. The applicant joined service in 1985 and if he is ousted in 1995, when he
is aged about 35, he may not be in a position to get another employment. Himself and his dependents will lose their livelihood and Article 21 of the
Constitution of India would stand violated insofar as they are concerned. Hence there is no merit whatever in the contention of the third respondent
that his claim will fall under Article 21 of the Constitution of India.
It should also be noted in this connection that the Director of Collegiate Education has been vested with the power to sanction leave to staff of
aided colleges to go abroad as seen from the proceedings of the Director of Collegiate Education, Madras in D. Dis. No. 123843/81/80 dated
4.10.1980. It is clear that the Director is advised not to delegate the powers to sanction leave to his subordinate unit officers and that he should
retain the powers with himself. It is not the case of the third respondent that his leave for going abroad was sanctioned by the Director. The
Proceedings of the Director dated 4.10.1980 and referred to above are referred to in detail in the counter-affidavit filed by the Director of
Collegiate Education in the writ petition at the appellate stage. In the proceedings issued by the Secretary to the College sanctioning the leave of
the third respondent on loss of pay from 6.3.1981 to 5.3.1983, there is no reference whatever to his going abroad. Admittedly, the third
respondent sought for long leave only for personal affairs. In the circumstances, the Division Bench ought to have considered whether a mandamus
could be issued in the writ petition directing the respondents therein to allow the writ petitioner to join duty in the College, particularly when there
was no challenge whatever of the Director''s proceedings referred to in the counter-affidavit filed by the Director whereby he passed an order that
the third respondent should not be allowed to rejoin duty without the permission of the Director. Unless the Court had found that the said order of
the Director was not valid, the Court should not have issued mandamus as has been done in this case.
K. Conclusion: In our opinion, on the facts and circumstances of this case, this Court could even exercise its suo motu power in order to
render justice and set aside the order passed by the Division Bench in the writ appeal. It is the duty of this Court to rectify the error committed by
it and set right the record as has been held by the Supreme Court in M/s. Devidayal Rolling Mills Vs. Prakash Chiman Lal Parikh and others, .
We have no hesitation in rejecting the sanctions urged on behalf of the third respondent and allowing the application for review. As pointed out
earlier, we have heard arguments on the merits of the writ appeal also as no purpose would be served in having the hearing in two different stages.
We are convinced that the judgment of the learned single Judge dismissing the writ petition in limine is correct and there is no merit whatever in the
writ appeal. The third respondent is not entitled to any relief under Article 226 of the Constitution of India. The writ appeal is, therefore, dismissed
and the judgment of the learned single judge in W.P. No. 10609 of 1991 is confirmed. The review application is allowed. The third respondent
shall pay the costs of the applicant herein in this proceeding. Counsel''s fee Rs. 2,000.