P.M. Philip vs The State

Menon, J.—The petitioner was a Range Officer in the Forest Department of the Government who was dismissed from service by an order, F1/2689/49/DD dated 22-4-1950, which reads as follows:

The Divisional Forest Officer, Shencottah, brought to the notice of the Conservator or Forests certain gross irregularities and false claims preferred for maintenance works done to the buildings in Arienkavu Teak Plantations during 1123 when Ranger P.M. Phillip was in charge of Arienkavu Teak Plantations. The Divisional Forest Officer was asked to conduct a regular enquiry in the matter. The following charges were framed against the Ranger:

Preparing a false voucher and claiming a false bill for Anjili doors while Kumbil doors were actually provided;

Preparing false voucher and claiming payment for 26 pairs of hinges when only 7 hinges (3 1/2 pairs) were used for the work; and

Preparing a false voucher for Rs. 30/- for plastering without doing any plastering work at all.

The explanation of the Ranger was found not satisfactory. Both the Divisional Forest Officer who conducted the enquiry and the Chief Conservator of Forests agree that the charges have been proved. Government have carefully considered the case and have come to the conclusion that Ranger Sri P.M. Phillip is guilty and that he deserves to be dismissed from service. They order accordingly. (Ex. A).

On 18-7-1950 the petitioner moved the respondent for a cancellation of the order and for reinstatement in service on the ground that the charges levelled against him were baseless and that there was no proper enquiry into those charges. That petition was rejected by order No. F1/9271/50/DD dated 24-11-1950.

The petitioner is informed that Government have been pleased to change me order of ''dismissal'' passed against him to one of ''discharge''. (Ex. B).

The petitioner again moved the respondent reiterating his prayer for reinstatement, and he was given a memo dated 29-4-1952, No. F1/12778/51/DD.

The petition is recorded (Ex. C).

The petitioner''s prayers are:

(1) That a writ of certiorari or such other directions be issued to the respondent for the purpose of calling up the records and proceedings in Government Order F1. 2689/49/DD dated April 1950 and to quash the same.

(2) That a writ of mandamus or such other directions be issued to compel the respondent for reinstating the petitioner in service and to reimburse the petitioner for the loss of pay and other emoluments of office for the entire period of his being kept out of service.

(3) That such other incidental reliefs as may be deemed fit and proper by this Hon''ble Court may also be granted.

The petition was filed before this Court on 18-2-1953 and it is clear from the dates given above that there has been an inordinate delay in doing so, namely, a period of over two years and eight months, and he petitioner''s only explanation for the delay is:

I beg to submit that I could not present this petition before the High Court earlier since I have been stranded in a far off country like East Africa in quest of a job (paragraph 17 of his affidavit in support of the petition).

Even if the petitioner has been in East Africa ever since April 1950 - there is no such specific averment in the affidavit - it should not have been difficult for him to move this Court without any substantial delay whatsoever as is evident from the fact that he was able to have the affidavit sworn before a Notary Public and Commissioner for Oaths in Tanganyika Territory on 11-2-1953 filed in this Court within a week thereafter, namely, on 18-2-1953.

I consider the delay fatal to the success of the petition. It is no doubt true that Art. 226 of the Constitution does not prescribe any period of limitation but as pointed out in - ''K.T. Abraham v. The State of Travancore-Cochin'', AIR 1954 TC 55 (A), "ordinarily no application under it will be entertained unless it is made soon after the right sought to be protected is infringed" and no relief will "ordinarily be granted to a person who does not seek his remedy under the said Article with due diligence."

The fact that the petitioner was moving the Government subsequent to his dismissal for a reversal of their order cannot also be of any avail. The only delay that the Court will excuse is the delay involved in the pursuit of a legal remedy open to the part; and no other. In a recent case, - Gandhinagar Motor Transport Society Vs. State of Bombay, , a Division Bench of the Bombay High Court considered this question:

The first objection is as to delay. The order which is challenged was passed on 18-1-1953, and the petition challenging it was preferred to this Court on 11-5-1953. The explanation that is given by Mr. Gamadia on behalf of the petitioners for this delay is that on 19-2-1953, the petitioners made a representation to Government to reconsider their decision and the Minister concerned rejected that representation on 28-3-1953, and the petitioners received the final order of Government on 3-4-1953. Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy. The remedy he pursued was extra-legal or extra-judicial. Once the final decision of Government is given, a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the petitioner.

and held:

Therefore, in our opinion, there has been such delay in the presentation of this petition as would disentitle the petitioner to any relief at our hands.

In that decision Chagla, C.J. also said:

But even assuming that that time should be condoned, the petitioners did not make a representation to Government till 15-2-1953, a month after the order was passed, and even they received the final decision of Government on 3-4-1953, they waited a month more before this petition was presented.

before recording the conclusion extracted above.

In the case before me the last order of the Government was dated 29-4-1952, and the petition to this Court was only on 18-2-1953, almost an year thereafter.

In view of my conclusion that this petition should fail on the ground of delay and laches, it is unnecessary to consider the various points raised by the petitioner in support of his prayers.

The petition will stand dismissed with costs, advocate''s fee Rs. 100/-.