Gujarat High Court
Hirabhai Babarbhai Kamdi vs State Of Gujarat on 5 October, 2021
Bench: A.S. Supehia
C/SCA/16963/2019 JUDGMENT DATED: 05/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16963 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 16963 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HIRABHAI BABARBHAI KAMDI
Versus
STATE OF GUJARAT
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Appearance:
MR SK PATEL(654) for the Petitioner(s) No. 1
MR.ROHAN SHAH, AGP for Respondent No.1
RULE SERVED BY DS(65) for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 05/10/2021
ORAL JUDGMENT
[1] When the captioned Civil Application praying
for provisional pension was taken up for hearing,
learned AGP Mr.Rohan Shah objected the same by
contending that in fact the writ petition suffers
from delay and latches, hence the captioned writ
petition is taken up for final hearing.
C/SCA/16963/2019 JUDGMENT DATED: 05/10/2021
[2] Learned AGP Mr.Rohan Shah has submitted that
there is delay in challenging the dismissal
order, which was passed on 27.06.2001 against the
petitioner since the writ petition is filed after
a period of 15 years. It is submitted that the
Appellate Authority has also rejected his appeal
on the ground of delay. Hence, the writ petition
may be rejected.
[3] When a specific query raised by this Court,
to the learned advocate Mr.Patel with regard to
explanation of delay in challenging the dismissal
order, he has submitted that applicant is
belonging to tribal area and because of his
family circumstances, he could not challenge the
same in time. He has submitted that looking to
the charge of absenteeism, from 13.03.1998 to
18.03.1998 and 06.04.1998 to 15.04.1998 i.e.
total 15 days, punishment for dismissal is
disproportionate. It is submitted that the
aforesaid dismissal order has financially and
economically affected the petitioner and hence,
the impugned order of dismissal may be set aside.
[4] The facts stated herein are not in dispute.
The petitioner, who was serving as protection
guard was issued a charge-sheet on 14.11.1998,
for holding a departmental inquiry for the inter
alia charges that the petitioner, when he was
C/SCA/16963/2019 JUDGMENT DATED: 05/10/2021
serving as a security guard with the MLA
Madhubhai J Bhoye, at that time, roamed around
with the wife of complainant Hiralal Chaudhary
from 13.03.1998 to 18.03.1998 and from 6.04.1998
to 15.04.1998 on his motorcycle without
depositing his revolver and without taking any
permission from the complainant. It is alleged
that he had remained unauthorizedly absent for
such period. The aforesaid charges were levelled
in view of the complaint filed by the complainant
Hiralal Chaudhry before Vaghai Police station on
15.04.1998.
[5] After holding a regular departmental
proceeding, and affording him an opportunity to
represent his case, he was dismissed by the order
dated 02.08.2001. Thereafter, the petitioner went
into the slumber and woke up in the year 2016 and
filed an appeal on 03.06.2016 before the
Appellate Authority. It is pertinent to note that
in the dismissal order dated 02.08.2001, the
petitioner was specifically informed to file an
appeal within a period of 60 days. The appeal of
the petitioner was rejected on the ground of
delay by the Appellate Authority on 08.05.2018
stating that no cogent reasons are given by him
for such delay. The Appellate Authority had also
considered the seriousness of the charges. The
petitioner thereafter, filed Revision application
C/SCA/16963/2019 JUDGMENT DATED: 05/10/2021
on 14.06.2018 and the same was also dismissed by
the authority on 10.01.2019. Thus, the fact
remain that the petitioner after 2001 till 2015
did not think it fit to challenge the dismissal
order.
[5] At this stage, it would be apposite to refer
the decision of the Supreme Court in the case of
Chennai Metropolitan Water Supply And Sewerage
Board Versus T.T.Murali Babu reported in 2014 (4)
SCC 108. The Apex Court while dealing with the
issue of delay in challenging the order of
dismissal in writ petition has observed thus:
"6 Thus, the doctrine of delay and laches should not be lightly brushed aside.
A writ court is required to weigh the explanation offered and the acceptability
of the same. The court should bear in mind that it is exercising an extraordi-
nary and equitable jurisdiction. As a constitutional court it has a duty to pro-
tect the rights of the citizens but simultaneously it is to keep itself alive to the
primary principle that when an aggrieved person, without adequate reason,
approaches the court at his own leisure or pleasure, the Court would be under
legal obligation to scrutinize whether the lis at a belated stage should be en-
tertained or not. Be it noted, delay comes in the way of equity. In certain cir-
cumstances delay and laches may not be fatal but in most circumstances inor-
dinate delay would only invite disaster for the litigant who knocks at the doors
of the Court. Delay reflects inactivity and inaction on the part of a litigant - a
litigant who has forgotten the basic norms, namely, "procrastination is the
greatest thief of time" and second, law does not permit one to sleep and rise
like a phoenix. Delay does bring in hazard and causes injury to the lis. In the
case at hand, though there has been four years delay in approaching the court,
yet the writ court chose not to address the same. It is the duty of the court to
scrutinize whether such enormous delay is to be ignored without any justifica-
tion. That apart, in the present case, such belated approach gains more signif-
icance as the respondent-employee being absolutely careless to his duty and
nurturing a lackadaisical attitude to the responsibility had remained unautho-
risedly absent on the pretext of some kind of ill health. We repeat at the cost of
repetition that remaining innocuously oblivious to such delay does not foster
the cause of justice. On the contrary, it brings in injustice, for it is likely to af-
fect others. Such delay may have impact on others ripened rights and may un-
necessarily drag others into litigation which in acceptable realm of probabil-
ity, may have been treated to have attained finality. A court is not expected to
C/SCA/16963/2019 JUDGMENT DATED: 05/10/2021
give indulgence to such indolent persons - who compete with Kumbhakarna or
for that matter Rip Van Winkle . In our considered opinion, such delay does
not deserve any indulgence and on the said ground alone the writ court should
have thrown the petition overboard at the very threshold."
[6] The Supreme Court, while dealing the delay of
four years in challenging the order of dismissal
for the charge of absenteeism has enunciated
that, the doctrine of delay and laches should not
be lightly brushed aside. A writ court is
required to weigh the explanation offered and the
acceptability of the same. In the present case,
the only explanation tendered by the petitioner
is his social status as a tribal and his
financial position. The Supreme Court has further
held that when an aggrieved person, without
adequate reason, approaches the court at his own
leisure or pleasure, the Court would be under
legal obligation to scrutinize whether the lis at
a belated stage should be entertained or not. It
is also held that delay comes in the way of
equity and such delay brings in hazard and causes
injury to the lis and it is the duty of the court
to scrutinize whether such enormous delay is to
be ignored without any justification.
[7] It is not the fact, as innocuously presented
by the learned advocate Mr.S.K.Patel for the
petitioner that the only charge levelled against
the petitioner was of absenteeism. The charges
C/SCA/16963/2019 JUDGMENT DATED: 05/10/2021
are very specific that he roamed on the
motorcycle with his service revolver with someone
else's wife during the aforesaid period. Neither
he informed his superiors, nor did he deposit his
service revolver before the concerned Police
Station. Such a conduct cannot be tolerated in a
Police force. Thus, the charges are very serious
in nature. The petitioner was informed in the
dismissal order passed in the year 2001 to file
an appeal within 60 days, despite that he chose
to file it in the year 2016. While rejecting the
appeal, the factor of delay has also weighed upon
the Appellate Authority. Merely, because his
appeal and revision are decided in the year 2019,
the same will not dilute the aspect of delay.
The Supreme Court has asserted that "We repeat at
the cost of repetition that remaining innocuously
oblivious to such delay does not foster the cause
of justice. On the contrary, it brings in
injustice, for it is likely to affect others.".
[8] The writ petition is rejected. Civil
application is disposed of. Rule is discharged.
(A. S. SUPEHIA, J)
NABILA A. VHORA
