Kaushal Kumar Pankaj vs State Of U.P. And 2 Others
2014 Latest Caselaw 9479 ALL

Citation : 2014 Latest Caselaw 9479 ALL
Judgement Date : 3 December, 2014

Allahabad High Court

Kaushal Kumar Pankaj vs State Of U.P. And 2 Others on 3 December, 2014

Bench: Dhananjaya Yeshwant Chandrachud, Chief Justice, Pradeep Kumar Baghel




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Chief Justice's Court
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 997 of 2014
 
Appellant :- Kaushal Kumar Pankaj
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- M.J. Akhtar, V.M. Zaidi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Pradeep Kumar Singh Baghel, J.

The special appeal arises from a judgment of the learned Single Judge dated 28 May 2014, by which a writ petition1 filed by the appellant to challenge an order of termination from service as Constable (Bandi Rakshak) has been dismissed on the ground of laches.

The appellant was selected on the post of Bandi Rakshak in the Gorakhpur Division in a vacancy reserved for the Scheduled Castes and was appointed on 9 March 2012. The appointment was on probation for a period of two years. During the course of the police verification, the Superintendent of Police, Kushi Nagar submitted a character verification report on 12 April 2012 stating that when the appellant was thirteen years of age, he had been involved in a family dispute, as a result of which a charge-sheet was filed under Sections 323, 325 & 504 of the Indian Penal Code bearing Case Crime No. 685A of 2003 and that the matter was pending before the competent Court. On the basis of this, a notice to show cause was issued to the appellant and since he failed to submit a reply, his services were terminated by the Senior Superintendent, District Jail, Gorakhpur on 17 May 2012. In the meantime, barely three days before the order of termination, the appellant was acquitted by the Additional Chief Judicial Magistrate, Kasya, Kushi Nagar in Criminal Case No. 2252 of 2004, under Sections 323, 504 & 325 of the Indian Penal Code. The appellant submitted a further representation, which was dismissed by the Deputy Inspector General of Jails, Gorakhpur Division, Gorakhpur by an order dated 12 July 2012. The learned Single Judge, before whom a writ petition was filed, dismissed the petition only on the ground that the petition, which had been filed in 2014 to challenge the orders dated 12 July 2012 and 17 May 2012, was barred by laches and that the explanation of the appellant was not convincing.

The explanation which the appellant had submitted in paragraphs 15 and 16 of the writ petition for the delay was that the appellant was suffering from hardship due to termination of his services and had been put to starvation. Moreover, it was stated that it was only after arranging the expenses of the legal proceedings that the petition was filed.

Having duly considered the facts of the present case including the explanation for the delay, we are of the view that the learned Single Judge has adopted a rather technical view by dismissing the petition on the ground of laches. The principle that a writ petition under Article 226 of the Constitution should be instituted within a reasonable period upon the accrual of the cause of action, is a rule of prudence and whether the delay in a particular case is of such a nature as to oust the petitioner from even urging a case on merits, is a matter which falls within the exercise of judicial discretion in the facts of a particular case. There may be cases where a delay of even less than the delay which had occurred in the present case, may disentitle a litigant to relief based on the factual background, the nature of the grievance and particularly where vested rights may have been created in favour of a third party which may be unsettled by a lapse of time. There may well be cases where the need for finality cannot brook any delay and public interest demands that matters be put to rest expeditiously. Article 226 of the Constitution is not a statute of limitations and is a powerful constitutional remedy to remedy injustice. The rule about not entertaining a stale cause of action is a rule of restraint, a rule of prudence.

In facts such as in the present case, the delay may be a factor which can be taken into account if the petition was to ultimately succeed, in structuring the relief and by considering whether a component of back wages should be denied. We hasten to add that in these proceedings we are not in any manner expressing our view on the merits of the case since the merits have not been enquired into by the learned Single Judge. However, we are of the view that it would have been appropriate and proper for the learned Single Judge to consider the petition on merits instead of dismissing it merely on the ground of delay. The delay in the present case was not of such a nature as to disentitle a litigant from urging the grievance before the Court on merits.

For these reasons, we allow the special appeal and set aside the impugned order of the learned Single Judge dated 28 May 2014. In consequence, we restore Writ-A No. 29911 of 2014 to the file of the learned Single Judge for disposal afresh on merits. Should the State intend to file a counter affidavit, it can do so on or before 16 January 2015. Liberty to the appellant-petitioner to move the learned Single Judge for early hearing of the petition.

The special appeal is, accordingly, disposed of. There shall be no order as to costs.

Order Date :- 3.12.2014

SKT/-

(Dr. D.Y. Chandrachud, CJ.)

(P.K.S. Baghel, J.)

Hon'ble Dr. D.Y. Chandrachud, Chief Justice

Hon'ble Pradeep Kumar Singh Baghel, J.

Disposed of.

For order, see our order of the date passed on the separate sheets (four pages).

Order Date :- 3.12.2014

SKT/-

(Dr. D.Y. Chandrachud, CJ.)