Delhi High Court
Shri Om Prakash vs Airport Authority Of India on 17 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 311/2017
% 17th January, 2017
SHRI OM PRAKASH ..... Petitioner
Through: Mr. D.K. Sharma, Advocate.
versus
AIRPORT AUTHORITY OF INDIA ..... Respondent
Through: Mr. Digvijay Rai, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
W.P.(C) 311/2017 and C.M. Appl. No. 1493/2017
1. By this writ petition under Article 226 of the Constitution of India the
petitioner impugns the order of the respondent/Airport Authority of
India/employer dated 17.4.2008 whereby the respondent/employer has
concluded that the petitioner's actual date of birth was 21.3.1947 but he
manipulated the same in the official records wrongly to be 3.8.1948 at the
time of giving papers for various welfare schemes in the year 2004.
Accordingly, by the impugned order dated 17.4.2008 it has been ordered
that whatever monetary benefits which the petitioner has received after the
age of normal retirement from the respondent/employer should be recovered
from the petitioner.
2. The impugned order dated 17.4.2008 reads as under:-
" CONFIDENTIAL
AIRPORTS AUTHORITY OF INDIA
DEPTT. OF PERSONNEL
I.G.I. AIRPORT
No. AAD:PERS:CONF:OP - Attdt. (Apt.)/07/62 NEW DELHI -110037
Dt. Apr. 17th, 2008
OFFICE ORDER
Sh. Om Prakash, Sr. Attdt. (Airport) s/o Sh. Fakira while filling the
Bio-data Form at the time of joining in International Airports Authority of
India furnished his date of birth as 21/03/1947.
2. In the year 2007, he had submitted Employees Declaration and
Nomination Form obtained from the employees for the purpose of nomination
and for various welfare schemes wherein he mentioned his date of birth as
03/08/1948. In the year June 2004 when Photo Indentity Cards were prepared,
he submitted his details with date of birth as 03/08/1948.
3. Shri Om Prakash, S/o Shri Fakira, Sr. Attendant (Airport), Employee
No. 36404 manipulated his date of birth from 21.3.1947 to 03.08.1948 for
malafide reasons and as per actual date of birth declared at the time of joining,
he was to be retired from the services of AAI on 31/03/2007 whereas due to
his manipulation, he has continued his services after 31.03.07.
4. A Show Cause Notice was issued to Sh. Om Prakash, Sr. Attdt.
(Airport) S/o Sh. Fakira vide No: AAD/PERS/CONF/OP-Attdt.(Apt.)/07/1064
dated 11.12.07. He submitted his reply dated 18.12.07 which was not found
satisfactory.
5. Sh. Om Prakash, Sr. Attdt. (Airport) was again advised vide letter dtd.
10.01.08, 01.02.08 & 03.03.08 to submit/show the original documents in
support of his claim of his Date of birth. But he failed to submit any proof
regarding his date of birth according to him i.e. 03.08.1948.
6. Shri Om Prakash, S/o Shri Fakira, Sr. Attendant (Airport) also
submitted a letter dtd. 29.11.07 wherein he submitted that his date of birth is
21.3.1947. Being illiterate he mentioned his date of birth in his official records
as 03.08.1948. He also apologized for his mistake.
7. After verification of official records, his submissions, Shr. Om
Prakash, S/o Shri Fakira, Sr. Attendant (Airport) is deemed retired w.e.f
31.03.07 from the services of AAI. The final settlement of his dues will be
done after settling the excess payment made to him after 31.3.07 towards
salary etc.
Sd/-
(A.B. SAXENA)
SR. MANAGER (PERS.)
Residential Address :
Shri Om Prakash, S/o Shri Fakira,
D-22, Rajiv Park, Sagar Park,
New Delhi - 110046" (underlining added)
3. At the outset, it is seen that dehors the merits in the case, the writ
petition is grossly barred by delay and laches, inasmuch as, though the
Limitation Act, strictly does not apply to a writ petition, the principals of
limitation will apply for the purposes of application of doctrine of delay and
laches for holding the writ petition not to be maintainable. The reason for
this is obvious inasmuch as if a suit is barred by time and cannot be
entertained then a writ petition under Article 226 of the Constitution of
India on the same cause of action for the same reliefs cannot be filed so as
to circumvent the law of limitation. When jurisdiction under Article 226 of
the Constitution of India is invoked, the same is exercised for the purposes
of enforcing the laws of the country, and not for defeating the laws of the
country including the Limitation Act.
4. Accordingly for the abovesaid reason the Supreme Court in the case
of State of Orissa and Another Vs. Mamata Mohanty (2011) 3 SCC 436
has held that the principles of limitation will also apply to writ proceedings
under Article 226 of the Constitution of India and writ proceedings which
are beyond the period of limitation under the Limitation Act should be
dismissed on the ground of delay and laches. Paras 52 to 54 of the
judgment in the case of Mamata Mohanty (supra) are relevant and these
paras read as under:-
"52. In the very first appeal, the respondent filed writ petition on
11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f.
1.1.1986 without furnishing any explanation for such inordinate delay
and on laches on her part. Section 3 of the Limitation Act 1963, makes it
obligatory on the part of the court to dismiss the Suit or appeal if made
after the prescribed period even though the limitation is not set up as a
defence and there is no plea to raise the issue of limitation even at
appellate stage because in some of the cases it may go to the root of the
matter.
53. Needless to say that Limitation Act 1963 does not apply in writ
jurisdiction. However, the doctrine of limitation being based on public
policy, the principles enshrined therein are applicable and writ petitions
are dismissed at initial stage on the ground of delay and laches. In a case
like at hand, getting a particular pay scale may give rise to a recurring
cause of action. In such an eventuality, the petition may be dismissed on
the ground of delay and laches and the court may refuse to grant relief
for the initial period in case of an unexplained and inordinate delay. In
the instant case, the Respondent claimed the relief from 1.1.1986 by
filing a petition on 11.11.2005 but the High Court for some unexplained
reason granted the relief w.e.f. 1.6.1984, though even the Notification
dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.
54. This Court has consistently rejected the contention that a petition
should be considered ignoring the delay and laches in case the petitioner
approaches the Court after coming to know of the relief granted by the
Court in a similar case as the same cannot furnish a proper explanation
for delay and laches. A litigant cannot wake up from deep slumber and
claim impetus from the judgment in cases where some diligent person
had approached the Court within a reasonable time."
5. Thus even assuming that the case of the petitioner had merits, and
which it has not as stated below, the writ petition is liable to be dismissed
and is accordingly dismissed on the ground of delay and laches because the
impugned order dated 17.4.2008 cannot be challenged eight years later in
2016.
6. Even for the sake of arguments, if I look into the issue of the date of
birth of the petitioner the impugned order shows that the petitioner was
asked to submit proof of his date of birth not as 21.3.1947 but as 3.8.1948
which was contended by the petitioner, but the petitioner not only failed to
submit any documents showing his date of birth as 21.3.1947. In fact the
petitioner had written a letter dated 29.11.2007 apologizing for wrongly
submitting the date of birth in the official records as 3.8.1948 instead of the
correct date of birth being 21.3.1947 as is observed in para 6 of the
impugned order dated 17.4.2008. Also, it is seen that in the show cause
notice dated 11.12.2007 the respondent specifically mentioned that in a
photocopy of the petitioner's ration card No. 891124 of the year 1997
petitioner had himself shown to be of the age of 50 years and therefore as on
2007 petitioner would be 60 years of age. All these aspects are not denied
by the petitioner in the writ petition whether as regards the petitioner writing
his letter dated 29.11.2007 to the respondent or the factum of his age being
60 years in 2007 as per his own ration card.
7. In view of the above, there is no merit in the writ petition, besides the
fact that the petition is squarely barred by delay and laches, and has to be
accordingly dismissed.
8. The petition is accordingly dismissed, leaving the parties to bear their
own costs.
JANUARY 17, 2017 VALMIKI J. MEHTA, J
AK
