Delhi Transport Corporation vs Anand Pal
2006 Latest Caselaw 1342 Del

JUDGMENT

S. Muralidhar, J.

1. This appeal is directed against the judgment and order of the learned Single Judge dated 17.1.2006 dismissing the appellant's applications CMs 10642-43/2004 seeking condensation of the delay in filing the application for restoration of Writ Petition (C) 6460/1998 and consequently the restoration application.

2. The facts, in brief, are that the respondent was appointed in the appellant-corporation as Driver-cum-Additional Fitter on probation with effect from 1.8.1975. He was subsequently confirmed in his post on 16.5.1980. It is stated that the respondent's absence from duty with effect from 10.7.1989 to 7.10.1989 was commuted as extraordinary leave without pay by invoking Clause 14 (10) (c) of the Delhi Road Transportation Authority (Condition of Employment and Service) Regulations, 1952 (for short 'Regulations'). The appellant issued a show cause notice to the respondent requiring him to explain he should not be declared as deemed to have resigned with effect from 7.10.1989 in terms of the said regulations. Ultimately, by an order dated 6.12.1989 the appellant declared the respondent as deemed to have resigned from his appointment with effect from 7.10.1989.

3. The ensuing industrial dispute resulted in an award dated 9.3.1996 of the Labour Court declaring the termination of the respondent to be illegal and ordering his reinstatement with full back wages. It appears that thereafter the appellant (DTC) filed a writ petition being WP(C) 6460/1998 in this Court on 11.12.1998 questioning the award, more than two years and six months after the date of award. It appears that on 13.9.1999, a learned Single Judge stayed the operation of the impugned award till further orders. The said writ petition was listed before the learned Single Judge on 10.9.2002. Since no one was present on behalf of the petitioner, the writ petition was dismissed for non-prosecution. The application for restoration of the writ petition being CM NO 1010642/2002 was filed on 27.8.2004. Thereafter on 17.1.2006 by the impugned order, the learned Single Judge dismissed the application for restoration.

4. The present appeal has been filed with the delay of 30 days. There is also delay of 48 days in refiling the appeal.

5. Mr. Ataul Haque, learned Counsel for the appellant, submits that in the impugned order no reasons have been given for dismissal of the application for restoration. The said impugned order reads as under:

17.01.2006

CMs 10642-63/04

Dismissed.

Reasons to follow

It is submitted that although the impugned order indicated that reasons would follow, no such reasons have been given and on that short ground itself the impugned order has to be set aside. We are not inclined to accept this submission because in our view, the learned Single Judge was, in the facts of the present case, justified in rejecting the application for restoration of the writ petition. Instead of remanding the matter to the learned Single Judge on this ground, we felt that it would be in the interests of justice to examine the merits of the plea of the appellant for restoration in the present proceedings itself.

6. It is next submitted by Mr. Haque that in the facts and circumstances of the present case, the learned Single Judge ought to have condoned the delay in filing the application for restoration and allowed the application for restoration of the writ petition. When asked to show the reason for the delay in filing the application for restoration, learned Counsel for the appellant drew our attention to para 3 (VI) of the Letters Patent Appeal which reads thus:

3 (VI) That on 10.9.2002 this matter was listed before Hon'ble Single Bench of this Hon'ble Court and none was present on behalf of the appellant and the Hon'ble Court was pleased to dismiss the writ petition for non-prosecution. The Hon'ble Court further directed the respondent to report for duty to the Regional Manager (North), DTC Wazirpur-II Delhi on 21.10.2002 at 10.00 A.M. That there was not any information from the counsel who was contesting the case regarding the present case to the appellant. A letter dated 25.4.2003 was sent to the contesting advocate and she informed on 2.5.2003 that the case was dismissed on 10.9.2002. She prepared an application for restoration and filed the same but anyhow it was misplaced somewhere in the registry and could not listed after many efforts. On time and again she was requested to intimate the position of the case but to no avail. Only when on 13.1.2004 the workman moved an application before Regional Manager (North), DTC Wazirpur Depot-II, Delhi for duty when the depot Manager on 16.1.2004 issued a letter to the contesting advocate for advise and necessary action. Various letters and reminders were sent to the counsel but no response. Ultimately she was de-paneled from the corporation and on 29.7.2004 the case was entrusted to the present counsel which was received on 6.8.2004. Thereafter, case file was inspected and application for restoration of the petition/recall of order dated 10.9.2002 was filed on 27.8.2004.

7. We are not at all satisfied that the above reasons constitute a justifiable explanation for the delay in filing the application for restoration. It appears that even when the appellant became aware, on 13.1.2004, about the application moved by the workman to enforce the award, for seven months thereafter no action appears to have been taken to move the Court for restoring the application. Even earlier, when on 2.5.2003 the erstwhile counsel for the appellant informed the appellant that the case has been dismissed on 10.9.2002, no follow up action was taken by the appellant for having the writ petition restored. In these circumstances, we satisfied that there is no valid explanation for the delay in filing the application for restoration.

8. Mr. Ataul Haque, learned Counsel for the appellant has placed reliance on judgment of the Hon'ble Supreme Court in State of Bihar v. Kameshwar Prasad Singh , State of Haryana v. Chandra Mani , Rafiq v. Munshilal and Devendra Swamy v. Karnataka State Road Transport Corporation AIR 2002 SC 2545, in support of his plea that where the delay in filing of the writ petition is on account of a default committed by the lawyer, the client should not be made to suffer. In particular, he referred to Devendra Swamy's case (supra), to say that even in that case, the Karnataka State Road Transport Corporation, after being convinced of the default of the earlier lawyer, engaged another counsel through whom the writ petition was filed belatedly. In those circumstances, the Hon'ble Supreme Court had affirmed the view of the Division Bench of the High Court which had condoned the delay.

9. The question of condoning the delay in filing an application for restoration has to depend upon the facts and circumstances of each case. It is ultimately for the court concerned to be satisfied that the reasons advanced for the delay are justified. The decisions cited by the learned Counsel for the appellant turn on the facts of those cases and no two cases are alike. In the present case, the records clearly indicate that at every stage of the proceedings there was a delay on the part of the appellant in pursuing the matter. The writ petition itself was filed more than two years and 6 months after the date of the award. Thereafter, the writ petition was dismissed in default on 10.9.2002. The appellant was informed, on 2.5.2003, that the writ petition has been dismissed in default on 10.9.2002. Thereafter, the appellant was approached by the workman on 13.1.2004 for reporting for duty. Still, the application for restoration was filed only seven months thereafter on 27.8.2004. Even in filing the present appeal, there is a delay of 30 days and further delay of 48 days in re-filing the appeal. Thus the two year and six months period laches in challenging the award itself constituted a sufficient cause for dismissal of the writ petition. Since there is no explanation for this laches at all, the loss suffered due to the negligence of the counsel being a ground to invoke the judgments of the Hon'ble Supreme Court cited by the learned Counsel, cannot be relied upon by appellant.

10. For the aforesaid reasons and in particular our view that the writ petition itself warranted dismissal for laches, we are of the view that the learned Single Judge was fully justified in dismissing the applications for condensation of delay and for restoration. There is no ground to interfere with the impugned order. Accordingly, this appeal is dismissed.