R.P. Vashistha vs Government Of Nct Delhi & Ors
2011 Latest Caselaw 1604 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+            W.P.(C) No. 3594/2007

%                                     Date of Decision: 21.03.2011

R.P. VASHISTHA                                             ..... Petitioner
                             Through :      Mr. R.K. Shukla, Advocate

                      versus

GOVERNMENT OF NCT DELHI & ORS                 .... Respondents
                    Through : Mr. Rajiv Nanda, Additional
                              Standing Counsel for GNCTD
                              along with Mr. V.P. Dwivedi,
                              Assistant Engineer.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.     Whether Reporters of local papers may be allowed
       to see the judgment ? No
2.     To be referred to the Reporter or not? No
3.     Whether the judgment should be reported in Digest? No

VEENA BIRBAL, J.

+ CM Nos.20028-20029/2010 in W.P.(C) No.3594/2007

These two applications are filed by the petitioner. In one

application i.e. CM No. 20028/2010, prayer is made for restoration

of three applications i.e. CM Nos. 7552-7554/2010 which were

dismissed in default on 31.05.2010. The other application i.e. CM

No. 20029/2010 is for condonation of delay of 110 days in moving

the aforesaid application.

The background of the case is as under:-

Petitioner had filed the aforesaid writ petition challenging the

order of the Central Administrative Tribunal, Principal Bench, New

Delhi dated 14th November, 2006 by which the OA filed by him

against the order of the Disciplinary Authority dated 2nd April, 2002

imposing a penalty of reduction in pay by three stages in the time

scale of pay for a period of three years with cumulative effect, had

been dismissed. A show cause notice was issued to the respondent

as to why rule nisi be not issued, returnable for 19th November,

2007. On 19th November, 2007, counsel for respondents had

appeared. Thereafter, matter was listed on 21st January, 2009. As

no one appeared on behalf of the petitioner, the writ petition was

dismissed for non prosecution on that date.

In August 2009, petitioner moved C.M 7553/2010 for

restoration of writ petition along with application being C.M

7552/2010 for condonation of delay of 171 days in moving the

application for restoration. Both these applications were returned by

the Registry as there were some objections. Thereafter, petitioner

had filed another application being C.M 7554/2010 for condonation

of delay of 214 days in refiling the aforesaid applications. All these

applications were listed on 31st May, 2010. On the said date neither

the petitioner nor his counsel appeared. Accordingly all the three

applications were dismissed in default.

Thereafter petitioner filed present two applications i.e. C.M

20028/2010 for restoration of aforesaid three applications i.e. CM

Nos. 7552-7554/2010 and another application being C.M

No.20029/2010 for condonation of delay in filing C.M 20028/2010.

In the application for restoration it is stated that counsel for the

petitioner could not appear before the court on 31st May, 2010 as his

clerk Sh. Radhey Shyam had not given proper information about the

listing of the matter on that day. It is alleged that Sh. Radhey

Shyam was in touch with the Registry of this court where he was

informed on 24th September, 2010 that the aforesaid applications

were dismissed in default on 31st May, 2010. On that very day, clerk

of the counsel obtained copy of the order dated 31st May, 2010 from

the internet facility provided by the Delhi High Court Bar Association

in chamber block and thereafter the aforesaid two applications i.e.

application for restoration as well as condonation of delay have been

moved. It is stated that non appearance of the counsel for the

applicant/petitioner on 31st May, 2010 was neither intentional nor

deliberate and the same had occurred due to communication

gap/want of information between the Registry and his clerk as is

stated above. It is stated that there is bonafide mistake in non-

appearance on 31.05.2010 and as such, petition be restored to its

regular number.

In the application for condonation of delay, it is stated that

petitioner had come to know about dismissal of aforesaid C.Ms only

on 24th September, 2010 and application for restoration of aforesaid

C.Ms was moved before 24th October, 2010. It is stated that there is

no delay in moving the application for condonation of delay but by

way of abundant caution the application is moved for condoning the

delay of 110 days.

The respondent has opposed the applications by filing separate

replies thereto. The stand of the respondent is that the writ petition

was dismissed for non prosecution on 21st January, 2009.

Thereafter, petitioner had moved C.Ms 7552-7554/2010 for

restoration of writ petition along with application for condonation of

delay in moving restoration application as well as application for

condonation of delay in refiling the said two applications which were

also dismissed in default on 31st May, 2010. It is stated that there

was delay of 171 days in moving the application for restoration of

petition and further delay of 214 days in refiling the application for

restoration as well as condonation of delay. It is stated that in

these circumstances it is unimaginable that counsel for petitioner

would wait for months together to get the aforesaid applications

listed for hearing. It is stated that application for restoration is

vague and does not give sufficient cause for non appearance on 31st

May, 2010, as such both the applications are liable to be dismissed.

No rejoinder is filed by the petitioner in respect of replies

submitted by respondent despite opportunity given in this regard.

We have heard learned counsel for the parties.

The main ground stated in the application is that clerk of the

counsel namely Sh. Radhey Shyam who is alleged to have been in

touch with the Registry was informed only on 24th September, 2010

that the application for restoration of writ petition along with

application for condonation of delay had been dismissed in default

and on that very day copy of the order dated 31.05.2010 was

obtained through the internet facility made by the Delhi High Court

Bar Association in the chamber block and necessary steps were

taken to move the present application. It may be mentioned that

though the ground taken for non-appearance is non-communication

to the counsel for petitioner by his clerk Sh. Radhey Shyam but the

application is not supported by the affidavit of said clerk of the

counsel. Further, the name of the person to whom the clerk has

allegedly contacted in the registry is also not stated. In application

for condonation of delay, which is supported by affidavit of

Sh.Radhey Shyam, clerk of the counsel, neither in the application

nor in the affidavit, there is averment to the effect that clerk was

informed by the Registry on 24th September, 2010 about the

dismissal of C.M.Nos.7552-7554/2010 on 31st May, 2010. Under

these circumstances alleged cause stated for non-appearance on

31.5.2010 is not believable. It is also not stated as to what steps

were taken by the petitioner or his counsel prior to 24.9.2010 for

getting the said application listed. The reasoning given in the

application is vague. There is total negligence as well as inaction on

the part of petitioner in pursuing the matter. The approach of the

petitioner in pursuing the present two applications where writ

petition has already been dismissed in default on 21.1.2009 and

thereafter applications for restoration of petition, condonation of

delay of 171 days in filing the said application and condonation of

delay of 214 days in refiling have also been dismissed in default on

31.5.2010, will pursue in the manner as is alleged in the present

applications is a casual approach. The same lacks bonafide on the

part of petitioner.

In view of above discussion, the applications are without any

merit. There is no sufficient cause for condonation of delay and also

no sufficient cause for non appearance on 31st May, 2010. Both the

applications are without any merits and are dismissed.

VEENA BIRBAL, J.

ANIL KUMAR, J.

MARCH 21, 2011 ssb