Sarwar Hussain vs State

21.04.1994 to 21.07.1994,92 days

15.08.1994 to 07.09.1994,22 days

17.05.1995 to 25.05.1995,141 days

18.07.1995 to 01.04.1996,249 days

Total,573 days

Learned counsel for the petitioner has filed written submissions contending therein non conduct of enquiry, violation of rules as also principles of",

Natural Justice besides question of delay and laches being rendered redundant on admission of writ petition etc.,

learned counsel for the respondents has also filed written submissions reiterating the stand taken in the objections while laying emphasis on,

petitioner not availing alternative remedy of appeal against the impugned order besides petitioner having forfeited his right to seek redress from the,

High Court in exercise of its extraordinary writ jurisdiction on account of delay and laches in approaching the High Court close to 5½ years after,

the passing of the impugned order dated 16.07.1996.,

Learned counsel for the parties have also relied on judgments in support of their respective stand. However, I am of the considered opinion that",

in the facts and circumstances of the case, the points urged by learned counsel for the petitioner pale into insignificance in view of petitioner",

invoking the jurisdiction of the High Court after an inordinate and unexplained delay of 5½ years from the date of accrual of cause of action. The,

claim is clearly hit by delay and laches and the writ petition is liable to be dismissed on this short ground alone.,

That it would be relevant to mention here that the services of the petitioner were terminated vide order dated 16.07.1996 whereas the petitioner,

filed the writ petition on 05.10.2001 without giving any satisfactory explanation for the inordinate delay in invoking the extraordinary writ,

jurisdiction of this court. The explanation as given and as has been referred to in the preceding paragraphs is far from satisfactory for explaining,

inordinate delay in invoking the extraordinary writ jurisdiction of this court after the lapse of more than 5½ years. Apparently the writ petition is,

hit by inordinate delay. In the circumstances the writ petition is liable to be dismissed on the short ground of delay and laches.,

Learned Division Bench of this Court in LPA ASW No. 188/2003, dated 23.07.2015 in case titled as State of J&K and others v.",

Mohammed Saleem considered question of delay and laches in a similar case and concluded that unexplained delay and laches was fatal for the,

maintainability of the writ petition and such a writ petition was liable to be dismissed on the said short ground alone. Relevant extract of the,

aforementioned judgment is reproduced hereunder:-,

In Tukaram Kana Joshi v. M.I.D.C. and Ors. AIR 2013 SC 565 relied upon by learned appellant's counsel, the Supreme Court has",

indicated the circumstances in which a time-barred claim suffering from delay and laches can still be entertained. Their Lordships after referring to,

series of decisions of the Supreme Court have held in para 12:,

No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after",

considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by,

the applicant is legally sustainable, they should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is",

manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the",

cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of",

non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged, by delay on the part of the petitioners.""",

What is manifest from the Constitution Bench judgment in Bhailal Bhai and the latest judgment in Tukaram Kana Joshi is that as a general rule if,

a writ petition under Article 226 of the Constitution suffers from delay and laches, the High Court ought not ordinarily entertain such a petition and",

lend its aid to the party guilty of such delay and laches. Nonetheless a question of condoning the delay can be accorded consideration depending,

upon facts of a given case and result would differ from case to case. If sufficient circumstances and bona fide grounds for petitioner's failure to,

approach the Court for a considerable time are made out, delay may be condoned. Underlining by undersigned",

The petitioner, a member of Belt force, did not report back to duty after availing a day's casual leave, did not seek extension of leave,",

absented from duty without leave and did not report back or avail any remedy, if there was any hindrance in reporting back, for more than a",

decade. He approached the writ court without making out a case justifying his failure to do so all along. This important aspect of the case should,

not have been ignored by the Ld. writ court and the petition, firstly, should not have been admitted without addressing the delay and even if",

admitted, question should have got priority while finally disposing of the same. Underlining by undersigned",

What has been urged with vehemence by the Ld. respondents counsel is that the question of delay cannot be raised once a writ petition is,

admitted. Reliance has been placed on decision of coordinate bench of this court in Bashir Ahmed Bhat's case, 2004 (3) JKJ 189 [HC] and",

subsequent decision in Abdul Ghani's case, 2013 (2) JKJ 140 [HC] It is similarly urged that the cause of action accrued to the petitioner after",

the representation submitted by him in the year 2009 fell on the deaf ears of the respondents.,

The decision in Abdul Ghani's case is based on the decision in Bashir Ahmed Bhat's case. In Bashir Ahmed Bhat's case, a Ld. Division Bench",

of this Court has observed primarily:,

There is no doubt that if a person who has a cause of action does not come to the court within reasonable time, he in law waives or loses his right",

by his conduct. But there is exception to it that if the aggrieved person is prevented by some circumstances to approach the Court and submits,

there for the plausible and convincing explanation which prevented him to come to the court, in that event, his right does not die and if the Court",

accepts that explanation, he can agitate and enforce his right.""",

Ld. Division Bench has also observed that,

it is also the proposition of law that delay and laches should be considered before admission of writ petition. The petition has not been admitted",

subject to delay and laches, which were not pressed at the time of its admission. Therefore, the writ petition under such circumstances cannot be",

dismissed on account of delay and laches.""",

It be noticed that Ld. Division Bench in Bashir Ahmed Bhat's case has conspicuously upheld the legal consequence of delay and laches on the,

claim of a person, which is that the person guilty of such delay and laches loses his right to remedy unless he shows a satisfactory and plausible",

reason for such delay and laches. Decision of the Constitution Bench in Bhailal Bhai's case would make it clear that a duty is cast on the writ court,

not to entertain a writ petition if it suffers from unreasonable and unexplained delay and laches as it has been held that the Court ought not,

ordinarily to lend its aid. Observations of the Ld. Division Bench in Bashir Ahmed Bhat's case that delay and laches should be considered before,

admission of the writ petition cannot be said to have laid down the law that question relating to the doctrine of delay and laches cannot be raised in,

appeal if the same was not raised before or considered by the writ court particularly when a writ petition was admitted without notice to,

respondents. This aspect would be clear from a later decision of the Supreme Court dated 23.8.2013 in State of Uttaranchal and Anr. v. Shiv,

Charan Singh Bhandari and Ors. 2013 (11) SCALE 56 where the Supreme Court has further held that the representation at a later stage does,

not revive a dead and stale cause of action.,

xxx 19.,

The issue taken up for determination by the Supreme Court was 'whether the respondents could have been allowed to maintain the petition,

before the Tribunal after lapse of two decades inasmuch as the said Madhav Singh Tadagi, a junior employee was conferred the benefit of ad hoc",

promotion from 15.11.1983.' Their Lordships observed that 'we have no trace of doubt that the respondents could have challenged the ad hoc,

promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the,

promotional post for six years till regular promotion took place.' Their Lordships observed further that 'it is clear as noon day that the cause of,

action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983.,

xxx.,

For all that said and discussed above and in view of the well settled legal principles, we hold that the respondent could well have approached",

this Court or any other competent court or forum if he was not allowed to resume duty or immediately after the issue of the termination order dated,

04.07.1991. The writ petition filed by the respondent in the year 2001 suffered from unexplained delay of more than a decade and was hit by the,

doctrine of delay and laches. Such a writ petition did not deserve to be admitted and should not have been entertained by the Ld. Writ Court that,

to without notice to the respondents and ignoring the delay. In any case appellants are not barred from raising the question of delay in this appeal.,

The impugned judgment and order therefore, cannot sustain as the writ petition was hit by the doctrine of delay and laches. This appeal, therefore,",

succeeds on that score alone and we do not feel the necessity of taking up the other grounds urged by the appellant.,

Viewed thus, this appeal is allowed as it has merit and the impugned judgment and order rendered by Ld. Writ Court is set aside.""",

Likewise the Hon'ble Supreme Court in Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4",

SCC 108 was pleased to hold as under:,

First, we shall deal with the facet of delay. In Maharashtra SRTC v. Balwant Regular Motor Service the Court referred to the principle",

that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Hurd, which is as follows: Balwant Regular Motor Service case, AIR",

pp. 335-36, para 11",

11 '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 of",

limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases,",

are, 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 relates to the remedy.' (Lindsay Petroleum Co. case, PC pp. 239-40)"" 14. In State of",

Maharashtra v. Digambar, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed",

that: (SCC p. 692, para 19)",

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 blameworthy conduct.""",

In State of M.P. v. Nandlal Jaiswal the Court observed that: (SCC p. 594, para 24)",

it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the",

High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic.""",

It has been further stated therein that: (Nandlal Jaiswal case, SCC p. 594, para 24)",

If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may",

decline to intervene and grant relief in the exercise of its writ jurisdiction.""",

Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage,

is likely to cause confusion and public inconvenience and bring in injustice.,

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. 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 scrutinise 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.",

In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the",

duty of the court to scrutinise whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated",

approach gains more significance as the respondent employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the,

responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining,

innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such",

delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may",

have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with,

Kumbhakarna"" or for that matter ""Rip Van Winkle"". In our considered opinion, such delay does not deserve any indulgence and on the said",

ground alone the writ court should have thrown the petition overboard at the very threshold.,

Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to",

maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be",

countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organisation. In this context, we may fruitfully quote a",

passage from Govt. of India v. George Philip: (SCC p. 14, para 18)",

18 In a case involving overstay of leave and absence from duty, granting six months' time to join duty amounts to not only giving premium to",

indiscipline but is wholly subversive of the work culture in the organisation. Article 51-A(j) of the Constitution lays down that it shall be the duty of,

every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of,

endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such,

orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the,

same.""",

We respectfully reiterate the said feeling and restate with the hope that the employees in any organisation should adhere to discipline for not only,

achieving personal excellence but for collective good of an organisation. When we say this, we may not be understood to have stated that the",

employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organisation develops the work culture,

and the employer and the employees are expected to remember the same as a precious value for systemic development.,

Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally",

unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The",

result of aforesaid analysis would entail overturning the judgments and orders passed by the learned Single Judge and the Division Bench of the,

High Court and, accordingly, we so do.",

Consequently, the appeal is allowed and the judgments and orders passed by the High Court are set aside leaving the parties to bear their",

respective costs.""",

Similarly in State of Kerala v. A.K. Gopakumar, (2013) 11 SCC 606 the Hon'ble Supreme Court was pleased to hold as under:",

The learned Single Judge dismissed the writ petition by observing that the respondent's absence from duty was unauthorised and he failed to",

avail the chance given by the competent authority to rejoin the duty. The Division Bench of the High Court took an extraordinary compassionate,

view of the gross misconduct committed by the respondent and directed that he be appointed if there is any vacancy in the cadre by observing that,

he is a qualified person and was already working as a Senior Lecturer in Government Medical College. The Division Bench also opined that the,

stand taken by the appellants herein was against their own interest because a doctor otherwise qualified had been thrown out of service for,

absence from duty for one-and-a-half years whereas large number of other doctors were granted leave and allowed to rejoin the duty.,

The learned Senior Counsel appearing for the respondent made strenuous efforts to convince us that the order dismissing his client from service,

was illegal per se because the same was not preceded by an enquiry held in accordance with the mandatory provisions contained in the Rules and,

Article 311 of the Constitution, but we have not felt convinced. In a given case, we may have dealt with the issue of violation of the Rules framed",

under proviso to Article 309 of the Constitution for holding departmental enquiry and also the question whether the Government was justified in,

invoking Article 311(3) of the Constitution and Rule 18(ii) of the Rules in detail but, in the facts of this case, we do not see any justification to",

undertake that exercise because the facts which constituted misconduct have not been disputed by the respondent and he has no explanation to,

offer as to why he left the place of posting without obtaining permission from the competent authority and why did he take employment in a foreign,

country without obtaining prior permission from the competent authority.,

At the cost of repetition, we may mention that the respondent had applied for two months' leave from 1-6-2006 to 31-7-2006 and went to a",

foreign country without waiting for its sanction and without obtaining permission from the competent authority. During the so-called leave period,",

the respondent secured employment in a foreign country. Not only this, he did not respond to the notice issued in December 2006 requiring him to",

join the duty. After initiation of the disciplinary action, the respondent had an opportunity to rejoin the duty but he did not avail the chance given to",

him by the Director, Medical Education. Therefore, we are inclined to take the view that the holding of regular departmental enquiry would have",

been an empty formality and we are in complete agreement with the learned Single Judge that the respondent's prayer for quashing the order of,

dismissal did not merit acceptance.,

It is also apposite to note that the writ petition filed by the respondent on 15-3-2010 was highly belated and the High Court would have been,

fully justified in refusing to entertain the respondent's prayer because he had not offered any explanation for the time gap of 2 years and 8 months,

between the issue of the order of dismissal and filing of the writ petition.,

For the reasons stated above, the appeal is allowed, the impugned judgment is set aside and the order passed by the learned Single Judge",

dismissing the writ petition filed by the respondent is restored. The parties are left to bear their own costs.""",

Viewed in the context of the fact situation and the circumstances referred to above, it emerges that the petitioner has tried to overreach the process",

of law by attempting to mislead the factual situation. The petitioner went home with station permission for seven days but absented w.e.f.,

06.05.1996 (Annexure A). Stand of the petitioner is that when he was at home his mother died. In the writ petition filed on 05.10.2001 the,

petitioner did not mention the date on which his mother died. Subsequently vide CMP No. 606/2006 he sought to place his mother death,

certificate dated 13.04.1994 on record. Apparently if the petitioner had gone home with seven days station permission and absented w.e.f.,

06.05.1996 then he cannot take up the plea that his mother died while he was home because the petitioners mother had already died on,

13.04.1994. (As per death certificate filed along with CMP No. 606/2006) As per record the petitioner had also absented from duty w.e.f.,

21.04.1994 to 21.07.1994. Obviously the petitioner is not stating the correct facts because in paragraph No. 2 and 3 of the writ petition, the",

petitioner avers that when he went home on 28.04.1986 with station permission his mother died. (As per Annexure A petitioner absented w.e.f.,

06.05.1996 after going home with station permission of seven days). Secondly, the petitioner in paragraph No. 3 of the writ petition states that",

after his mother's death his father became ill and was admitted to hospital for a pretty long time and since there was nobody else to look after his,

father he could not join duty. Strangely, no record of ailment of petitioners father or of his admission in hospital were placed on record nor is there",

any mention the ailment from which the petitioners father was suffering from, the hospital in which he was admitted, the duration for which he was",

admitted etc. There is no mention in the writ petition filed on 05.10.2001 of the petitioner having remained ill during the period of absence.,

However after ten years from the date of absence a certificate was sought to be placed on record justifying his absence. Apart from the,

aforementioned glaring inconsistencies in the story trotted out by the petitioner in the writ petition with a totally different story being sought to be,

projected in CMP No. 606/2006 the fact remains that after having gone home with seven days station permission, the petitioner absented without",

permission. Even prior thereto the petitioner from 1994 to 01.04.1996 had absented for 573 days.,

The petitioner remaining absent for the aforementioned period has not been controverted. Neither has the petitioner given any explanation as to,

why he never invoked the appellate jurisdiction / approached a Court of Law against the impugned order till a period of 5½ years from the date,

of the impugned order. The petitioner belongs to a disciplined force. It is not open to a member of a disciplined force to behave in the manner in,

which the petitioner has conducted himself. Besides the stand of the petitioner in the writ petition can be said to be a bundle of lies. In view of the,

position as noticed above, I am of the considered view that the petitioner has failed to make out a case warranting intervention by this Court in the",

exercise of its extraordinary writ jurisdiction on the short ground of delay and laches as also on account of overreaching the process of law. Thus,

the writ petition deserves to be and is accordingly dismissed on grounds of inordinate and unexplained delay and laches of 5½ years from the,

date of termination of his services apart from his trying to overreach and thereby misuse and abuse of the process of law.,