Mohan Swami Nathan vs Union Of India & Ors.
2009 Latest Caselaw 574 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI


+             W.P.(C) No.6909/2009


                        Judgment delivered on: 17th February, 2009
%

Mohan Swami Nathan                               ...... Petitioner.

              Through: Mr. I.C. Mishra, Advocate.

                        versus


Union of India & Ors.                       ..... Respondents

              Through: Mr. V.P. Sharma for respondent/UOI.
                       Mr. V. Sudeer for respondent nos.2 to 4.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                       Yes

2.     To be referred to Reporter or not?                    Yes

3.     Whether the judgment should be reported
       in the Digest?                                        Yes

KAILASH GAMBHIR, J. (Oral)

*

1. By way of the present writ petition filed under

Article 226 and 227 of the Constitution, the petitioner

seeks to challenge the order dated 6.11.93, whereby the

appeal filed by the petitioner against the order of the

Disciplinary Authority was dismissed. The petitioner

also assails the order dated 28.6.93, whereby the

Disciplinary Authority had passed the order upholding

the findings of the Enquiry Officer and found that

various acts of misconduct committed by the petitioner

were very serious in nature to attract a major penalty.

The Disciplinary Authority after taking into account the

seriousness and gravity of various acts of misconduct

committed by the petitioner imposed punishment of

compulsorily retiring the petitioner from the respondent

Bank. This order of the Disciplinary Authority was

challenged by the petitioner by way of filing an appeal

and the said appeal of the petitioner was decided by the

Appellate Authority vide order dated 6.11.93. The

petitioner approached this court in the year 2002 by way

of filing writ petition bearing W.P.(C) No. 2874/2002,

wherein the grievance was raised by the petitioner that

the Appellate Authority did not dispose off his appeal and

also various representations made by him so as to seek

redress of his grievance. Vide order dated 8.5.2002, this

court directed notice on the said petition which was

accepted by the counsel for the UOI. Rule was also

directed in the said petition. This writ petition was

withdrawn by the petitioner vide order dated 29.5.2002

as by that time, the petitioner came to know about the

order dated 6.11.93 passed by the Appellate Authority.

The petitioner requested the liberty to file a fresh

petition so as to raise all other grounds as were available

to the petitioner. The said petition was dismissed as

withdrawn after reserving the right of the petitioner to

file a comprehensive writ petition. The petitioner

thereafter slept over the matter and did not take any

steps to challenge the order of the Appellate Authority

and it is only by way of writing a letter dated 28.4.2008,

the petitioner raised a grievance that copy of the order

passed by the Appellate Authority was never supplied to

him. The said letter of the petitioner was duly replied by

the respondent bank vide their reply dated 9.5.2008,

refuting the request of the petitioner. Thereafter, the

petitioner filed another writ petition bearing W.P.(C) No.

5531/2008 to seek directions against the respondent bank

for making available copy of the order of the Appellate

Authority and the said petition (W.P.(C) No. 5531/2008) of

the petitioner was dismissed by this court vide order

dated 1.8.2008.

2. It would be worthwhile to reproduce the said

order dated 1.8.2008 as under:

"The petitioner was compulsorily retired from the service of Syndicate Bank (respondent No. 2) on 28.06.1993. He filed a statutory appeal against the impugned order of his retirement and his said appeal stood dismissed by the appellate authority vide order dated 06.11.1993. Thereafter, after about a year of his dismissal of his statutory appeal, the petitioner filed a writ petition being WP(C) No. 2874/2002 in this Court and challenged his compulsory retirement.

The said writ petition was dismissed as withdrawn vide order passed by this Court on 29.05.2002 granting liberty to the petitioner

to file a fresh petition on all grounds raised in the earlier petition. After the earlier petition was withdrawn by the petitioner, the petitioner slept over the matter for more than 6 years and has now filed the present writ petition seeking directions to respondent No. 1 for immediate disposal of his appeal/representation dated 01.09.1994/16.07.1997 and for directions to respondent No. 2 to supply the appeal order dated 06.11.1993. The counsel appearing on behalf of respondent No. 2 says that the order by which the appeal was dismissed was sent to the petitioner long back in 1993 itself.

However, she has given another copy of the order dated 06.11.1993 to the counsel for the petitioner in Court today. Be that as it may, the fact remains that the impugned order of compulsory retirement was passed against the petitioner in June, 1993 and his statutory appeal against the said order was also dismissed on 06.11.1993. There is an inexplicable delay on the part of the petitioner in not approaching the court in case he was aggrieved by his compulsory retirement which took place way back in 1993. This writ petition is hopelessly barred by delay and latches and cannot be entertained at this belated stage.

In view of the above, this writ petition is dismissed in limine."

3. It would be apparent from the observations

made by the S.N. Aggarwal, J. that although fresh copy of

the order dated 6.11.93 was made available to the

petitioner but the Court strongly felt that there was

inexplicable delay on the part of the petitioner in not

approaching the court against the said order of the

Appellate Authority which was passed way back in the

year 1993.

4. The aforesaid order also refers to the stand

taken by the respondent bank that copy of the order of

the Appellate Authority was supplied to the petitioner in

the year 1993 itself. Now again by way of present writ

petition, the petitioner seeks to challenge the order dated

28.6.93 passed by the Disciplinary Authority and that of

the Appellate Authority dated 6.11.93 and also seeks

directions against the respondent to reinstate the

petitioner with all the terminal benefits along with full

back wages and consequential benefits. The petitioner

also seeks directions for the release of the amount of Rs.

1,65,469.78/- which as per the petitioner was illegally

deducted by the respondent from his Provident Fund

Account on 11.1.99.

5. Indisputably, the appeal was filed by the

petitioner challenging the order of the Disciplinary

Authority dated 28.6.93 and the said appeal of the

petitioner was decided by the Appellate Authority vide

order dated 6.11.93, It cannot be believed that the

appellant would not have known the fate of his appeal till

29.5.2002, when the said writ petition (W.P.(C) No.

2874/2002) was withdrawn by the petitioner. It is

equally not believable that the Appellate Authority would

hide the fact of deciding the appeal and would not send

any communication in that regard.

6. Be that as it may, in any case, as per the own

case of the petitioner he came to know about the order of

the Appellate Authority on 29.5.2002 when he withdrew

the said petition(W.P.(C) No. 2874/2002), so as to

challenge the order of the Appellate Authority by filing a

fresh writ petition, but still the petitioner remained

complacent and did not make any efforts to obtain copy

of the order of the Appellate Authority and it is only by

way of a legal notice dated 28.4.2008, i.e. almost after a

lapse of six years, the petitioner took the issue with the

respondent bank to supply copy of the order of the

Appellate Authority. The respondent bank sent a reply

vide order dated 19.5.2008 stating that they do not

believe that there is any basis for the petitioner to state

that he had never received copy of the Appellate

Authority. The petitioner, thereafter filed a writ petition

(W.P.(C) No. 5531/2008) to seek copy of the order

passed by the Appellate Authority which was made

available by the respondent bank on 1.8.2008. Now again

after a lapse of about seven months, the petitioner has

filed the present writ petition challenging the said two

orders which were passed against him way back in the

year 1993. It is no doubt true that in an appropriate

case, the delay can be condoned but in the present case

the present petition is not only bad due to delay and

laches but no explanation much less any plausible

explanation has been offered by the petitioner for not

taking any steps after he came to know about the

passing of the order of the Appellate Authority. The first

letter/legal notice making a request to supply copy of the

said order was sent by the petitioner on 28.4.2008, and

prior thereto no such request was made by the petitioner

for supply of copy of the said order. Even copy of the

letter/legal notice dated 28.4.2008 has not been placed

by the petitioner on record. The petitioner has also

deliberately not filed copy of the order dated 1.8.2008,

wherein strong observations were made by this court on

the conduct of the petitioner, though very casually the

petitioner has made reference to filing of said writ

petition. It is only the counsel for the respondent bank

who has put in appearance on advance notice, produced

copy of the said order dated 1.8.2008 before this court.

7. In view of the fact that the petitioner has failed

to give any reasonable or plausible explanation for such

protracted delay on his part in approaching this court

against the order of the Disciplinary Authority as well as

Appellate Authority which were passed long back in the

year 1993, and also on account of the fact that no

explanation has been given by the petitioner for not

taking any proper steps to obtain the copy of the order of

the Appellate Authority, I do not feel inclined to exercise

writ jurisdiction in favour of the petitioner. In any event

of the matter, since the counsel for the respondent nos. 2

to 4 appears on advance notice, he shall ensure that if

any dues with regard to the retiral benefits of the

petitioner are still left to be paid, the same shall be paid

to the petitioner within a period of one month.

8. With these directions, the petition stands

disposed of.

February 17, 2009                 KAILASH GAMBHIR, J.
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