THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY
WRIT PETITION No.1558 of 2011
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed seeking the following relief:
"... to issue any appropriate order or direction or more particularly a writ in the nature of Mandamus declaring the removal of the petitioner in Procs.No.E3/763/07 dt.6.11.2007 of the District Collector, Nalgonda, as null and void and thereby set aside the same and direct the respondents to reinstate the petitioner to duty and pass such other order or orders as deemed fit and proper in the interest of justice."
2) The learned counsel for the petitioner has stated that the petitioner was appointed as Computer Operator on third party contract basis on 01.08.2006. That when the petitioner has been working in the office of Mandal Parishad Development Office, Chandampet, Nalgonda, without any blemish from any quarters, the respondent No.1 vide Procs.No.E3/763/2007 dated 06.11.2007 removed the petitioner from service. The learned counsel has stated that without issuing prior notice to the petitioner or calling for explanation or without charge sheet being filed, the petitioner has been removed from service in an arbitrary and illegal manner by the respondent No.1. The learned counsel has stated that when the disciplinary 2 proceedings are pending and even before the enquiry is completed and without issuing any show cause notice or calling for an explanation, the respondent No.1 has taken a decision to remove the petitioner from service. Therefore, the impugned order suffers from arbitrariness and illegality and ultimately, prayed this Court to allow the writ petition as prayed for. In support of his submissions, the learned counsel for the petitioner has relied upon the judgment in A.P. Tourism Development Corporation Limited vs. Sri B. Nandeswar Rao1.
3) Though the writ petition has come up for admission on 29.01.2011, no interim order of stay has been granted by this Court.
4) Even though the matter has been coming up for final hearing since February, 2023, till this date, no counter has been filed by the respondent authorities. Therefore, left with no other option, this Court has proceeded with the matter on merits.
5) A perusal of the impugned order dated 06.11.2007 passed by the respondent No.1 shows that the petitioner and other Computer Operators, M.P. Chandampet, have committed certain 1 Judgment dated 09.06.2014 passed by a Division Bench of this Court in Writ Appeal No.920 of 2014 3 irregularities/lapses in implementation of NREGS Scheme in the Mandal. Therefore, the enquiry officer was appointed and he submitted his report. Based on the said enquiry report, the authority concerned was of the opinion that the petitioner and other persons have to be removed pending detailed enquiry by the Revenue Divisional Officer and they were removed from service by the impugned order. The judgment in A.P. Tourism Development Corporation Limited vs. Sri B. Nandeswar Rao (referred supra) relied upon by the learned counsel for the petitioner is distinguishable from the facts and circumstances of the case on hand.
6) Admittedly, the petitioner is a contract employee working through a third party contract. Neither the petitioner nor the official respondents have filed any scrap of paper to show that, subsequent to the passing of the impugned order, the disciplinary authority i.e, Revenue Divisional Officer, Miryalaguda, conducted a detailed enquiry and whether or not the disciplinary proceedings were concluded. The petitioner has not filed any document to show that the period of contract issued to the third party i.e, Softech I.T Solutions, Nalgonda, through whom the petitioner was working, is still in subsistence even as on date. The services of the persons working under the 4 third party contract cannot be treated on par with that of regular employee. Unless and until any material is placed on record to show that contract period is still subsisting, no orders can be passed in favour of the petitioner at this length of time.
Furthermore, even though the impugned order was passed on 06.11.2007, for the reasons best known to the petitioner, he has filed the present writ petition in the year 2011. The petitioner has not explained the delay of almost four(04) years in approaching this Hon'ble Court.
7) A Full Bench of the erstwhile High Court of Andhra Pradesh in P.V. Narayana v. APSRTC, Hyderabad2, has held as under:
"71. On the basis of the decisions of the Supreme Court referred to above, the relevant considerations that may be taken into account in determining the issue of delay and laches may be summarized thus:
(1) Though no period of limitation is prescribed for the writ Courts to exercise their powers under Article 226 of the Constitution of India or to file a writ petition, a person aggrieved should approach the Court without loss of time.
In appropriate cases, where there is delay and the same has properly been explained with cogent reasons, Court may condone the delay as an exception to meet the ends of justice. But, it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and 2 2013 SCC Online AP 729 5 who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.
(2) Courts have evolved rules of self-imposed restraints or fetters where the High Court may hot enquire into belated or stale claim and deny relief to a party if he is found guilty of laches. One who is tardy, not vigilant and does not seek intervention of the Court within a reasonable time from the date of accrual of cause of action or alleged violation of the constitutional, legal or other right, is not entitled to relief under Article 226.
(3) ......
(4) ......
(5) ......
(6) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.
(7) Where there is remiss or negligence on the part of a party approaching the Court for relief after an inordinate and unexplained delay, in such cases, it would not be proper to enforce the fundamental right As a general rule if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party in exercise of the extraordinary power of mandamus.
(8) There is no waiver of fundamental right But while exercising discretionary jurisdiction Court can take into account delay and laches on the part of the applicant in approaching a writ Court (9) ......
(10) ......
6(11) If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Courts have applied the rule of delay with greater rigor in service matters.
(12) The benefit of a judgment cannot be extended to a case automatically. The Court is entitled to take into consideration the fact as to whether the petitioner had chosen to sit over the matter and wake up after the decision of the Court If it is found that the petitioner approached the Court with unreasonable delay, the same may disentitle him to obtain a discretionary relief. Long Delay disentitles a party to the discretionary relief under Articles 32 and 226 and persons who had slept over their rights for long and elected to wake up when they had the impetus from the judgment of similarly placed persons.
(13) Where during the intervening period rights of third parties have crystallized, it would be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and where there is no cogent explanation for the delay.
(14) ......
72. An analysis of the case law discussed above would amply make it clear that issue of a writ of a mandamus or certiorari is largely a matter of sound discretion and will not be granted if there is negligence or omission on the part of the person to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. Therefore, burden lies on the workman who has to establish that in spite of his best efforts and diligence he was prevented from approaching the authority within the period of limitation provided for or the writ Court within a reasonable period of time. If the workman is not able to satisfactorily explain with cogent reasons for the delay he 7 is not entitled to seek for condonation of the delay. It is true that the punishment imposed cannot be sustained in law because of the illegality crept in it in not conducting a prior enquiry. But, still the workman is under a statutory obligation to challenge the same within the time provided by the statutory rules or regulations or within a reasonable period of time before the writ Court If delay of 5 to 18 years is condoned, for no reason or fault on the part of the authority, the proceedings which had attained finality are to be set aside. Setting aside of such order at a belated stage and allowing of a stale claim, may, as rightly held by the Division Bench in Esa Ali's case (supra), inspire the workman to seek for consequential benefits of promotion as well, in which event, the rights of the third parties would adversely be affected for no fault of theirs. A workman who is tardy and not diligent for years in availing a statutory remedy or in approaching the Court of law, in our view, cannot be encouraged or permitted to contend that in view of the decision of the Supreme Court the punishment cannot be sustained in law, therefore, delay to any extent is to be condoned automatically in exercise of the power conferred on the appellate or revisional authorities or by the writ Courts in exercise of the discretionary powers under Article 226 of the Constitution of India. Courts can come to the aid of a person who is diligent and vigilant but unable to approach the authority or Court of law for redressal of his grievance in spite of his best efforts and reasons beyond his control but not to a person who is tardy and negligent or slept over the matter in availing the statutory or legal remedies.
873. No doubt in the present cases the punishment awarded cannot be sustained in law in view of the law laid down by the Supreme Court in Kulwant Singh Gill's case (supra) and in the light of the Regulations, but, a specific period having been prescribed in the Regulations of the Corporation, as stated earlier, the same need to be adhered to. The proviso under Regulation 23 empowers the appellate authority to entertain an appeal even after expiry of the period of limitation provided if it is satisfied that the appellant had sufficient cause for not submitting the appeal in time. A similar power may also be exercised under Regulation 29. If the authority is not satisfied with the explanation offered by the workman in challenging the orders of punishment, this Court, in exercise of the jurisdiction under Article 226, cannot interfere unless the conclusion arrived at by the authority that the explanation offered by the workman is not justified or germane or no prudent person would have come to such a conclusion. In appropriate cases where the appeal or revision is filed within a reasonable period of delay, it is always open to the appellate or revisional authority to condone the delay on valid explanation putforth by the workman in not approaching the authorities within the time specified, in which event, the writ Court should not interfere with the order. In our opinion, when Regulations provided a period of two months for filing an appeal and six months for a revision, delay of 5 to 18 years in approaching the authority would certainly be fatal to the case of a workman unless properly explained with cogent reasons.
974. It is true that in some cases where the delay is five years or so the Supreme Court inclined to condone the delay but under different circumstances. When the fundamental rights are violated or where the delay is not directly attributable to the party seeking the relief or where the rights of the third parties are not intervened or in matters where seniority of employees is not finalized, the Court, would be justified to grant the relief; but not as a general rule of practice. Therefore, in our considered opinion, Kulwant Singh Gilll's case (supra), does not confer or clothe an automatic right with the employee to challenge the order of the authority at any time or whenever he wishes. The principles laid down by the Apex Court governing the condonation of delay will certainly and equally have application even in cases where challenge is made to an order imposing the punishment contrary to the Regulations or the ratio in Kulwant Singh Gill's case (supra), where the employee had slept over the matter and had not chosen to challenge it within a reasonable period of time. It may also be noticed that in service matters, the Courts have applied the rule of delay with greater rigor."
8) Relying on the above proposition of law, a Division Bench of this Court had dismissed the Writ Appeal Nos.1660 of 2018 and 593 of 2016 vide common judgment dated 13.12.2021 holding that there was an inordinate delay in approaching the Court.
109) In this case also the petitioner has not given any cogent or convincing explanation for the delay in approaching this Court after a period of more than four years. The writ affidavit is bereft of any details or reasons.
10) For the afore-stated reasons and in view of the law laid down by the Full Bench of this Court in P.V. Narayana's case (referred supra), this Court does not find any illegality or infirmity in the impugned order passed by the respondent No.1 warranting interference of this Court. The Writ Petition is devoid of merits and it is liable to be dismissed.
11) Accordingly, the writ petition is dismissed.
Consequently, miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
__________________________ A. ABHISHEK REDDY, J Date: 25.04.2023 scs