Dharam Singh vs Delhi Transport Corporation
2015 Latest Caselaw 3453 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                              Date of hearing and order: 29th April 2015

+      W.P.(C) 2269/2015
       DHARAM SINGH                                     ..... Petitioner
                   Through             Ms. Rashmi B. Singh, Advocate

                          versus

       DELHI TRANSPORT CORPORATION          ..... Respondent
                    Through Ms. Avnish Ahlawat, Advocate

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE I.S. MEHTA, J

                               ORDER

% KAILASH GAMBHIR J. (ORAL)

1. Learned counsel for the respondent at the outset, has raised a

preliminary objection to the maintainability of the present Writ Petition

on the ground of inordinate delay and laches on the part of the petitioner

not only in approaching the Central Administrative Tribunal (for short,

'the Tribunal') to challenge the order dated 25th April, 2012 but even this

Court by way of filing the present Writ Petition.

2. The submission of the counsel for the respondent is that the order

of punishment was passed by the Disciplinary Authority on 28th May,

1999 and the same was upheld by the Appellate Authority by its order

dated 1st December, 1999. Thereafter, the O.A. No. 1358/2012 was

preferred by the petitioner after the acquittal of the petitioner from the

criminal case by order of the Judicial Magistrate, Sahaswan, Badayu,

U.P. in Case No. 504/1999 dated 4th December, 2008.

3. Learned counsel for the respondent submits that limitation period

under Section 21 of the Administrative Tribunals Act, 1985 is one year.

But without giving any explanation, the petitioner had filed the said OA

before the Tribunal after a long gap of 13 years. Counsel further submits

that even though the Tribunal had not dealt with the said aspect, but the

respondents can raise the legal issue even at this stage. She further

submits that even for assailing the order dated 25th April, 2012 passed by

the Tribunal, there is a delay of more than a period of 32 months' on the

part of the petitioner and for this delay, the petitioner has not offered any

explanation.

4. Learned counsel for the petitioner, on the other hand, submits that

the petitioner is a poor person and therefore, some mercy should be

shown to him. Counsel also submits that the objection of delay was never

taken by the respondent before the Tribunal. Therefore, the respondent

cannot take the said objection at this stage. Counsel also submits that the

petitioner had approached the Tribunal only after he was acquitted from

the criminal case being Case No. 504/1999 by the Judicial Magistrate,

Sahaswan, Badayu, U.P. and prior thereto, there was no ground available

to the petitioner to challenge the order of the disciplinary authority and

the appropriate authority.

5. We have heard the learned counsel for the parties.

6. The appellant was employed as a driver with the respondent/DTC.

While on his duty to Route No. 3 from Delhi to Badayu on Bus No. 1946,

an accident took place at Village Usmanpur around 13.30 P.M. on 6th

March, 1999. The Police registered a case being FIR No. 31/1999 under

Sections 279/304A IPC against the petitioner. Because of the said

registration of the FIR by the Police, the petitioner was placed under

suspension by the respondent vide order dated 10th March, 1999.

Thereafter, the charge sheet dated 31st March, 1999 was issued against

him for the said misconduct of petitioner stating inter-alia that the

accident took place on 6th March, 1999 due to his rash and negligent

driving.

6. Counsel for the petitioner submits that after his acquittal, the

petitioner had written a letter dated 29th March, 2011 to the Deputy G.M.,

DTC with a request to discharge him from the punishment awarded to

him. Enquiry was held against the petitioner which led to order of

punishment dated 28th May, 1999 passed by the respondent/DTC. The

respondent had ordered stoppage of two increments with cumulative

effect. As per the counsel for the petitioner, the said order was

challenged by the appellant in an appeal and the same was dismissed by

the order dated 12th October, 1999 passed by the Regional Chief

Manager, DTC on the ground of being devoid of merit.

7. The order of the Disciplinary Authority and the Appellate

Authority in fact became final between the parties as no further remedy

was taken by the appellant to challenge the legality or the correctness of

the said orders. However, the petitioner was acquitted in the criminal

case by the order dated 4th December, 2008 passed by the Judicial

Magistrate, Sahaswan, Badayu, U.P. After his acquittal, the petitioner

had filed the representations dated 16th December, 2009, 14th September,

2010 and 29th March, 2011 to the Deputy G.M., DTC wherein he

requested the authority to discharge him from the punishment. These

representations, as per the counsel for the petitioner, were rejected by the

respondent on 17th August, 2011. Such order dated 17th August, 2011

rejecting the representations has been placed on record by the petitioner.

By a mere fact that the said date has been mentioned in the list of dates,

we cannot give any credence to such an averment.

8. It is quite apparent that even after the order of acquittal being

passed in favour of the petitioner herein, the petitioner remained silent

and never took any steps to challenge the order of punishment before the

Tribunal.

9. So far as the representations given by the petitioner to the Deputy

G.M., DTC is concerned, the settled legal position is that filing of

representations cannot give the benefit of extending the period of

limitation. In this regard, reliance can be placed on the judgment of the

Hon'ble Supreme in the case of State of Tripura v. Arabinda

Chakraborty, (2014) 6 SCC 460 wherein it was held:

"In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided. In the instant case, it is a fact that the respondent was given a fresh appointment order on 22.11.1967, which is on record. The said appointment order gave a fresh appointment to the respondent and therefore, there could not have been any question with regard to continuity of service with effect from the first employment of the respondent. It is pertinent to note that service of the respondent had been terminated because of his unauthorised absence. It was unfortunate that the suit had been filed after 13 years and therefore, the relevant record pertaining to the order of termination of the respondent had been destroyed or could not be traced but in such an event, no harm should be caused to the appellant-employer because the appellant-employer was not supposed to keep the record pertaining to the order terminating service of the respondent forever. Had the respondent filed the suit within the period of limitation i.e. within three years from the date when he was given a fresh appointment on 22.11.1967, possibly the Government could have placed on record an order whereby service of the respondent had been terminated. The respondent, after having additional qualification approached the concerned authority in the month of November, 1967 with a request for fresh appointment and therefore, by virtue of an order dated 22.11. 1967 he was given a fresh appointment as a librarian. In

fact there was no question of losing his seniority because he was given a fresh appointment by virtue of the order dated 22.11. 1967.

..........

...........

It is a settled legal position that the period of limitation would commence from the date on which the cause of action takes place. Had there been any statute giving right of appeal to the respondent and if the respondent had filed such a statutory appeal, the period of limitation would have commenced from the date when the statutory appeal was decided. In the instant case, there was no provision with regard to any statutory appeal. The respondent kept on making representations one after another and all the representations had been rejected. Submission of the respondent to the effect that the period of limitation would commence from the date on which his last representation was rejected cannot be accepted. If accepted, it would be nothing but travesty of the law of limitation. One can go on making representations for 25 years and in that event one cannot say that the period of limitation would commence when the last representation was decided. On this legal issue, we feel that the courts below committed an error by considering the date of rejection of the last representation as the date on which the cause of action had arisen. This could not have been done."

10. Under Section 21 of the Central Administrative Tribunals Act,

1985, the limitation period provided is one year from the date on which a

final order is passed against the aggrieved person. In the facts of the

present case, in fact, in so far as the Disciplinary proceedings are

concerned, final order was passed by the Tribunal on 25th April, 2012

dismissing the OA of the petitioner. The said order of the Tribunal as

well as the order of the disciplinary authority dated 28 th May, 1999 was

never challenged by the petitioner.

11. If the petitioner had any grievance or wished to challenge the

orders passed by the Disciplinary Authority as well as the Appellate

Authority, it was for him to have approached the court then and not after

he was acquitted from the criminal case. No such opportunity was given

to the petitioner by the Appellate Authority that in case of his acquittal by

the criminal court, he could re-agitate his grievance. The slackness on the

part of the petitioner is much apparent as even for challenging the order

of the Tribunal, there has been an inordinate and unexplained delay on the

part of the petitioner as the present writ petition has been filed on 4th

March, 2015. In this context, this Court deems it fit to extract few

decisions which deal with delay and laches, which are as follows: In

State of M.P., v. Nandlal Jaismal 1986 (4) SCC 566 the Hon'ble

Supreme Court held:

"It is well settled that the power of the High Court to issue an appropriate writ under Art. 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extra ordinary remedy under the writ jurisdiction became it is likely to cause confusion and public inconvenience and brings in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party

rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. However, this rule of laches or delay is not a rigid rule which can be cast in a straight jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately, it would be a matter within the discretion of the Court. Ex-hypothesi every discretion must he exercised fairly and justly so as to promote justice and not to defeat it".

In Karnataka Power Corporation Ltd. Through its Chairman &

Managing Director & Anr. Vs. K.Thangappan & Anr., (2006) 4 SCC

322 the Supreme Court had held thus:

"Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably."

12. Looking into the entire conduct of the petitioner, we are of the view

that the present petition impugning the order dated 25th April, 2012

passed by the Tribunal in O.A No. 1358/2012 is barred on account of

inordinate delay and laches on his part.

13. We find no merit in the present Writ Petition and the same is

dismissed.

KAILASH GAMBHIR, J

I.S. MEHTA, J APRIL 29, 2015 sd