Randhir Singh vs State of Haryana etc.

G.R. Majithia and S.K. Jain, JJ.—This judgment disposes of C.W.P. No. 16547 of 1992, 89 of 1993 and 101 of 1993.

A challenge has been made to the orders passed in the years 1977, 1978, 1979, 1980 and 1982 stopping increments with commulative effect or without commutative effect in these petitions under Articles 226/227 of the Constitution of India.

A reference to the relevant facts has been made from the pleadings in C.W.P. No. 16547 of 1992, which was filed in this Court on December 15, 1992. The details of the impugned orders by which increments were stopped with commulative effect or without commulative effect are as under :-

1) Order No. 92/ECC, : Two increment stopped with dated commulative effect 19.1.77 2) Order No. 400/ECC, : -Do- dated 3.2.1977. 3) Order No. 1525/ECC, : One increment stopped with dated 2.3.1978. commulative effect 4) Order No. 1526/ECC, : -Do- dated 8.2.1978. 5) Order No. 2757/ECC, : -Do- dated 17.1.1979. 6) Order No. 2751/ECC, : -Do- dated 17.1.1979. 7) Order No. 2754, : -Do- dated 17.1.1979. 8) Order No. 2748/ECC, : -Do- dated 17.1.1979. 9) Order No. 2748, : Two increments stopped dated 17.1.1979. with conmulative effect 10) Order No. 2742/ECC, : One increment stopped dated 17.1.1979. with commulative effect 11) Order No. 2739/ECC, : Two increments stopped dated 17.1.1979. with commulative effect 12) Order No. 2761/ECC, : One increment stopped dated 17.1.1979. with commulative effect 13) Order No. 2761/ECC, : One increment stopped dated 17.1.1979. with commutative effect 14) Order No. 1635/ECC, : Two increments stopped dated 20.7.1979. with commutative effect 15) Order No. 2607/ECC, : One increment stopped dated 20.7.1979. with commulative effect 16) Order No. 1961/ECC, : -Do- dated 9.8.79. 17) Order No. 2230/ECC, : -Do- dated 21.8.79. 18) Order No. 4014/ECC, : -Do- dated 26.10.1979. 19) Order No. 4011/ECC, : -Do- dated 26.10.1977. 20) Order No. 6280/ECC, : -Do- dated 11.1.1982. 21) Order No. 6132/ECC, : -Do- dated 10.1.1982. 22) Order No. 5429/ECC, : One increment stopped dated 6.11.82. without commulative effect 23) Order No. 5434/ECC, : -Do- dated 6.11.82. 24) Order No. 5428/ECC, : One increment stopped dated 26.12.1979. without commulative effect from 5.5.79 to 23.5.79.

The only grouse of the petitioner is that the increments were stopped without following the proper procedure, and as such the orders are bad in law.

Written statement has been filed by the General Manager, Haryana Roadways, Rewari Depot, Rewari, stating that the petitioner, was appointed as a Conductor in the year 1976. 31 orders for stoppage of increments had been passed against the petitioner on account of misappropriation of government money, details of which are reproduced below:-

"(1) Two increments stopped with cumulative effect vide order No. 400/EA dated 3.3.77 on account of misappropriation of Govt. money Rs. 5.25 nP. Show cause notice was served. Reply of show cause notice received."

(2) Two increments stopped with cumulative effect vide order No. 92/EA dt. 19.1.77 on account of misappropriation of Govt. money Rs. 5.25 nP. Charge sheet was served reply received, show cause notice was served, reply to show cause notice received.

(3) One increment stopped with cumulative effect vide order No. 1525/EC, dated 8.3.78 on account of misappropriation of Govt. money Rs. 4.40 nP; show cause notice was served, reply of show cause notice received.

(4) One increment stopped with cumulative effect vide order No. 1536/ECC dt. 8.3.78 on account of misappropriation of government money Rs. 4.80 nP; show cause notice served, reply of show cause notice received.

(5) One increment stopped with cumulative effect vide order No. 2742/ECC dt. 17.1.79 on account of misappropriation of Govt. money Rs. 1.80 nP; show cause notice served; no reply received inspite of reminder.

(6) One increment stopped with commutative effect vide order No. 2739/ECC dt. 17.1.79 on account of misappropriation of Govt. money Rs. 2.25 nP., show cause notice served, reply not received inspite of reminder.

(7) Two increments stopped with cumulative effect vide order'' No. 2745/ECC, dt. 17.1.79 on account of misappropriation of Govt. money Rs. 330 nP., show cause notice was served, no reply received inspite of reminders.

(8) One increment stopped with cumulative effect vide order No. 2748/ECC dt. 17.1.79 on account of misappropriation of Govt. money Rs. 1.20 nP; show cause notice served, reply not received in spite of reminder.

(9) One increment stopped with cumulative effect vide order No. 2754/ECC dt. 17.1.79 on account of misappropriation of Govt. Money Rs. 1.80 nP; show cause notice served; no reply received inspite of reminder.

(10) One increment stopped with cumulative effect vide order No. 2751/ECC dt. 17.1.79 on account of misappropriation of Govt. money Rs. 1.80 nP; show cause notice served, reply not received inspite of reminder.

(11) One increment stopped without commulative effect vide order N6. 2737ECC dt. 17.1.79 on account of misappropriation of Govt. money Rs. 1.35 nP; show cause notice served, reply not received inspite of reminder.

(12) One increment stopped with cumulative effect vide Order No. 2761/ECC dt. 17.1.79 on account bf misappropriation of Govt. money Rs. 4.00 nP; show cause notice served, reply not received inspite of reminder.

(13) One increment stopped with commulative effect vide Order No. 2757/ECC dt. 17.1.79 on account of misappropriation of Govt. money Rs. 1.80 nP; show cause notice served, reply not received inspite of reminder.

(14) One increment stopped with cumulative effect vide order No. 4011/ECC dt. 26.10.79 on account of misappropriation of G6vt. money Rs. 2.20 nP; charge sheet was served, no reply received in spite of reminder, show cause notice served, no reply received inspite of reminder.

(15) One increment stopped with cumulative effect vide order No. 4014/ECC dt. 26.10.79 on account of misappropriation of Govt. money Rs. 3.25 nP; show cause notice served, reply not received inspite of reminder.

(16) One increment stopped with cumulative effect vide order No. 2130/ECC dt. 21.3.79 on account of misappropriation of Govt. money Rs. 3.40 nP., show cause notice served, reply not received inspite of reminder.

(17) One increment stopped with cumulative, effect vide order No. 196VECC dated 9.8.79 on account of misappropriation of Govt. money Rs. 3.42 nP., show cause notice served, reply not received inspite of reminder.

(18) Two increments stopped with cumulative effect vide order No. 1635/ECC dated 20.7.79 on account of misappropriation of Govt. tax on (ticket) Rs. 1.00 nP; charge-sheet served; no reply received inspite of reminder, show cause notice served, no reply received inspite of reminder.

(19) One increment stopped with cumulative effect vide order No. 2607/ECC dt. 3.9.79 on account of misappropriation of Govt. money Rs. 3.80 nP; show cause notice served, reply not received inspite of reminder.

(20) One increment stopped with cumulative effect vide order No. 6280/ECC, dated 11.1.80 on account of misappropriation of Govt. money Rs. 1.50 nP, show cause notice served, reply not received inspite of reminder.

(21) One increment stopped with cumulative effect vide order No. 6132/ECC dated 10.1.80 on account of misappropriation of Govt. money Rs. 6.60 nP; show cause notice served, reply not received inspite of reminder.

(22) One increment stopped with cumulative effect vide order No. 4592/ECC dated 1.5.81 on account of misappropriation of government money Rs. 2.10 nP.; show cause notice served, reply not received inspite of reminder.

(23) One increment stopped with cumulative effect vide order No. 4653/EC dated 1.5.81 on account of misappropriation of Govt. money Rs. 6.60 nP., show cause notice served, reply not received inspite of reminder.

(24) One increment stopped with cumulative effect vide order No. 4621/ECC dt. 1.5.81 on account of misappropriation of government money Rs. 20.57 nP; show cause notice served, reply not received inspite of reminder.

(25) One increment stopped with cumulative effect vide order No. 8064/ECC, dated 263.81 on account of misappropriation of Govt. money Rs. 130 nP; show cause notice served, reply not received inspite of reminder.

(26) One increment stopped with commutative effect vide order No. 8035/ECC dt. 26.5.81 on account of misappropriation of government money Rs. 350 nP., show cause notice served, reply not received inspite of reminder.

(27) One increment stopped with cumulative effect vide order No. 8045/ECC dt. 26.5.81 on account of misappropriation of Govt. money Rs. 2.10 nP., show cause notice served, reply not received inspite of reminder.

(28) One increment stopped with cumulative effect vide order No. 9632/ECC dt. 29.7.81 on account of misappropriation of Govt. Money Rs. 5,00 nP., show cause notice served, reply not received inspite of reminder.

(29) Two increments slopped without cumulative effect vide order No.2505/ECC dt. 6.8.82 on account of misappropriation of Govt. money Rs.16.20 np., charge sheet served. The petitioner admitted his guilt in writing.

(30) One increment stopped without cumulative effect vide order No. 5429/ECC, dated 6.11.82 on account of misappropriation of Govt. money Rs. 5.60 nP., charge sheet served. The petitioner admitted his guilt in writing.

(31) One increment stopped without cumulative effect vide order No. 5434/ECC, dated 6.11.82 on account of misappropriation of Govt. money Rs. 6.00 nP., charge sheet served. The petitioner admitted his guilt in writing.

The aforementioned orders were duly communicated to the petitioner. He did not challenge the same before the appellate authority.

The order of stoppage of increments with cumulative effect was treated as a minor punishment Rule 5 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, as applicable to the State of Haryana then, which deals with minor and major penalties which could be imposed on delinquent Government Employees, reads thus :-

"5. Penalties :- The following penalties may, for good and sufficient reasons, and as hereinafter provided, be imposed on a Government employee, namely,

MINOR PENALTIES:

(i) Censure;

(ii) Withholding of his promotions;

(iii) Recovery from his pay the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;

(iv) Withholding of increments of pay;

MAJOR PENALTIES:

(v) Redaction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay;

(vi) Reduction to a lower time-scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government employees to the time-scale of pay, grade, post or service from which he was reduced with or without further directions regarding conditions of restoration to the grade or post of service from which the Government employee was reduced and his seniority and pay on such restoration to that grade, post or service;

(vii) Compulsory retirement;

(viii) Renewal from service which shall not be a disqualification for future employment under the Government.

(ix) Dismissal from service which shall ordinarily be a disqualification for future employment under the Government."

Rule 5 came up for consideration before a single Judge of this Court in the case reported as Punjab State and Ors. v. Ram Lubhaya 1983 (2) S.L.R. 410, the learned Judge opined that with-holding of increment with cumulative effect would not be covered by Sub-rule (iv) and which would call Sub-rule (v) of Rule 5, and therefore, would not be a minor penalty. After so holding, he held that before imposing this penalty, the procedure prescribed for imposition of major penalties has to be followed.

The view expressed in Ram Lubhaya''s case (supra) was not approved by a Division Bench of Court in Sarwan Singh v. The State of Punjab and Ors. ILR (1985) P&H 193, where it was held that the order imposing a penalty of stoppage of increment would fall under Clause (iv ) of Rule 5 and is a minor penalty.

The Department presumably has been treating the imposition of penalty of stoppage of increment as a minor penalty and did not follow the procedure prescribed for imposition of major penalties. However, the learned counsel for the petitioner maintain that in a recent judgment reported as Kulwant Singh Gill v. The State of Punjab 1991 (1) R.S.J. 413, the apex Court has held that the order of imposition of stoppage of increment will fall under Rule 5(v) of the Rules and as such, the Department cannot be allowed to contend that it had acted in conformity with the rule of law laid down in Sanvan Singh''s case (supra). In Kulwant Singh Gill''s case (supra), the order of stoppage of two increments with cumulative effect dated April 12, 1977 was successfully challenged in a civil suit. The civil Court held that the offending order amounted to major penalty and could only be passed after following the procedure laid down in Rules 8 and 9 of the Rules. The judgment and decree of the trial Court was affirmed in appeal by the first appellate Court, but in second appeal this Court held that the order of stoppage of increments would fall within the ambit of Rule 5(iv) of the Rules, meaning thereby that a regular enquiry had pot to be held. That judgment of this Court was set aside by the apex Court. The suit was filed within limitation. So, the question of laches or delay did not arise for consideration before the apex Court. But, in the instant case, the petitioner has challenged the orders passed in the years 1977 to 1982 in this petition, which was filed after more than 12 years. The apex Court in State of Punjab and Ors. v. Gurdev Singh AIR 1991 S.C. 2219, held that a party aggrieved by the validity of the order has to approach the Court for the relief of declaration within the limitation prescribed and that such type of suits had to be filed within three years of the order as provided under Article 113 of the Limitation Act, 1963. In Gurdev Singh''s case (supra), the services of the respondent Gurdev Singh were terminated on September 25, 1975. The order of termination of services was challenged through Civil Suit on April 18, 1984. The trial Court accepted the plea of the State on the point of limitation and dismissed the suit, but on appeal the Additional District Judge, Jullundur decreed the suit observing that though the termination order was simpliciter in nature, yet it was passed as a measure of punishment. Since the order of termination was bad, the suit was not barred by time. This Court in the second appeal preferred by the State against the Judgment and decree of the first appellate Court agreed with the view following its earlier decision. The judgment rendered in regular second appeal was challenged in the apex Court and the apex Court held thus :-

"The party aggrieved by the invalidity of the order has to approach the. Court for relief of the declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation."

After so observing, the apex Court, approving the view of the Allahabad High Court in Jagdish Prasad Mathur and Others Vs. United Provinces Government, , and the Oudh Chief Court in AIR 1943 368 (Oudh) , observed thus:-

"The Allahabad High Court in Jagdish Prasad Mathur and Others Vs. United Provinces Government, , has taken the view that a suit for declaration by a dismissed employee on the ground that his dismissal is void is governed by Art, 126 of the Limitation Act. A similar view has been taken by Oudh Chief Court in AIR 1943 368 (Oudh) . That in our opinion is the correct view to be taken. A suit for declaration, that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Article 113 of the limitation Act. The decision to the contrary taken by the Punjab and Haryana High Court in these and other cases (State of Punjab v. Ajit Singh (1988)1 SLR 96 (Punjab & Har) and (ii) State of Punjab v. Ram Singh (1986) 3 SLR 379 (P & H) is not correct and stands over-ruled."

The appeal filed by the State of Punjab was allowed and the suit filed by Gurdev Singh was dismissed on the ground that it was barred by time.

Thus, it is no more open to dispute that a person aggrieved by an invalid I order has to challenge, it within the limitation prescribed under Article 113 of the Limitation Act, 1963, which is three years from the date of issuance of the order.

Can the petitioner be permitted to circumvent the provisions of the Limitation Act by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution? There is no dispute that Article 226 confers on all the High Courts very wide, powers in the matter of issuing writs, which they never possessed. Though there is no specific period of limitation, this Court may refuse to exercise its extraordinary jurisdiction where the petitioner is guilty of laches for which there is no satisfactory explanation.

The question of delay and laches barring a petition under Article 226 of the Constitution of India has been considered by different Courts in different situations. The preponderance of judicial opinion is that delay and laches in filing a petition under Article 226 of the Constitution is merely a fetter to the exercise of discretion by a court under Article 226 and is not an absolute bar to the belated petition. The Courts have refused to entertain belated petitions where third party interests were affected or likely to be affected by such a petition. The matter of delay and laches came up before the Supreme Court in Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, wherein the Constitutional Bench overruling an objection of delay and laches observed thus:-

"We do not think this contention should prevail with us. In the first place it must be remembered that the rule which says that the Court may not enquire into belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviable rule that whenever there is delay the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah C J., in Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, , is one of the discretion for the Court to follow from case to case. There is no lower limit and there is no upper limit. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose."

The view, viz., that delay and laches is merely a fetter in the exercise of discretion and is not a rule of law has been consistently followed. In the facts and circumstances of cases, Courts have entertained belated petitions and also dismissed them on the ground of delay and laches.

In Jagdish Narain Mitter v. The State of Bihar 1973 SLR 521, the petitioner had challenged the order of removal from service after a long time and the delay was sought to be explained that the employee had been sending representations to the Government for three years, which did not lie. The apex Court held that the delay was not excusable.

In P.S. Sadasivaswamy v. State of Tamil Nadu 1976 (1) SLR 53, the petitioner had challenged his supersession in the matter of promotion. The apex Court held that the writ petition should be filed normally within six months or at the most within one year, in such type of situations.

In Roshan Lal and Ors. v, International Airport Authority of India and Ors. 1980 (3) SLR 587, the appointment made in the year 1975 was challenged in 1978. The apex Court held that it would, not be justified in re-opening the question of legality of the appointment after several years.

In Madras Port Trust v. Hymanshu International 1979 (1) SLR 757, the Supreme Court held thus :-

The plea of limitation based on this section is one which the Court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims and do what is fair and just to the citizens. Of course, if a government or public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course, the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavoidable.

In the instant case, the orders of stoppage of increments were passed in the yean 1977, 1978, 1979, 1980, 1981 and 1982, which were challenged in this writ petition filed in this Court on December 15, 1992. These punishments may have been taken into consideration by the disciplinary authority for the purpose of granting promotion and it would result in great hardship to other employees who bad excelled the petitioners in the matter of promotion. It will be correct exercise of our discretion if these writ petitions are dismissed on the ground of delay and laches.

For the reasons stated above, these petitions are dismissed.