Gujarat High Court
Ashwinkumar Manjibhai Patel vs State Of Gujarat on 4 October, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15057 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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ASHWINKUMAR MANJIBHAI PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
YAGNESHKUMAR S JOSHI(8074) for the Petitioner(s) No. 1
MR MAYANK CHAVDA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
RULE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 04/10/2024
ORAL JUDGMENT
1. The present petition has been filed by the petitioner under
Article 226 of the Constitution of India seeking for the following
reliefs :-
"17(A) Your Lordships may be pleased to issue a writ of
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mandamus or a writ in the nature of mandamus or any other
appropriate writ, order or directions directing to quash and set
aside the impugned order dated 25.06.2015 passed by the
respondent authority (at Annexure-A hereto) and further be
pleased to direct the respondent authority to act as per
representation dated 19.08.2019 and further be pleased to
reinstate the present petition on the post of Talati-cum-Mantri
with all consequential benefits and back-wages and continuity
of service along with arrears with interest @ 12 % p.a.;
(B) Pending admission, hearing and final disposal of this
petition, Your Lordships may be pleased to stay further
operation, implementation and execution of the impugned
order dated 25.06.2015 passed by the respondent authority (at
Annexure-A hereto);"
2. The factual matrix which has led to filing of the present
petition is that an advertisement came to be issued by District
Development Office, Navsari (hereinafter referred to as the
'respondent'), for the post of Gram Panchayat Mantri (Talati-cum-
Mantri) Class-III. Pursuant to the advertisement, the petitioner had
submitted online application after following due procedure.
Respondent authority vide communication dated 18.10.2011
informed the petitioner that he was selected for the post in question
and vide order dated 20.10.2011 petitioner was appointed on a fixed
pay subject to the conditions stated in the order. Subsequent to his
appointment in the year 2011, the petitioner was transferred to
Village Ambadi by the competent authority vide order dated
19.01.2013.
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2.1. It came to the notice of the respondent authority that after a
period of four years from the date of appointment of the petitioner,
First Information Report being C.R. No. I-05 of 2015 came to be
registered with Navsari ACB Police Station, which implicated the
petitioner as prime accused. The allegation against the petitioner
was that he had accepted Rs.15,000/- towards illegal gratification.
Pursuant to the First Information Report, charge sheet was issued
showing the petitioner as prime accused and thereafter trial had
commenced. However, till date, the trial is still pending. It is the case
of the petitioner that on the basis of the registration of the First
Information Report, the services of the petitioner came to be
terminated vide order dated 25.06.2015, which is impugned in the
present petition.
2. We have heard Mr. Panthil Majmudar, learned advocate
appearing for the petitioner and Mr. H.S. Munshaw, learned
advocate appearing for respondent no. 2.
3. Mr. Majmudar, learned advocate for the petitioner has
submitted that the order of termination is passed without issuing any
show cause notice to the petitioner and without calling for any
explanation from the petitioner. It is, therefore, contended that the
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order is passed in gross violation of the principles of natural justice.
It is further submitted that the petitioner has not committed any
misconduct and the order impugned is punitive in nature, which cast
stigma on the petitioner. Therefore, such punitive and stigmatic
order ought not to have been passed without holding departmental
inquiry.
3.1. It is further submitted by learned advocate Mr. Majmudar that
the impugned order cast stigma upon the petitioner and it is not a
simple order of termination. The entire decision making process of
the respondent authority while passing the impugned order is
arbitrary, unjust and discriminatory. It is further submitted by
learned advocate for the petitioner that when stigma is cast due to
termination of service, holding of regular inquiry was imperative and
on such aspect, the impugned order is required to be quashed.
3.2. Learned advocate Mr. Majmudar has relied upon the decision
of this Court in the case of Kanusinh Pratapsinh Thakor v. State
of Gujarat & Ors., rendered in Letters Patent Appeal No. 1201 of
2023 dated 24.09.2024, wherein, this Court has quashed and set
aside the termination order which was on the basis of the
registration of the First Information Report, which has resulted into
acquittal.
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3.3. Drawing attention of this Court in the case of Kanusinh
Pratapsinh Thakor (supra), learned advocate for the petitioner has
submitted that same analogy can be drawn in the facts of the present
case and as such, has requested to grant the reliefs as prayed for.
4. Per contra, Mr. H.S. Munshaw, learned advocate appearing for
respondent no. 2 has relied upon the affidavit-in-reply filed by the
respondent authority and has contended that the petitioner was
appointed on 20.10.2011 as 'Sahayak Talati-cum-Mantri on a fixed
monthly remuneration of Rs.5,300/- for a period of five years on
certain terms and conditions as stated in the appointment order. The
petitioner was later on serving at Ambada - Signod place, wherein he
was caught while accepting bribe of Rs.15,000/- and on the basis of
such serious allegation of misconduct, while relying upon the
Government Resolution dated 16.02.2006 issued by the State
Government, vide order dated 25.06.2015, the service of petitioner
came to be terminated. It is further contended that the petitioner has
not preferred any appeal against the order of termination and has
approached this Court after a period of 4 years after passing of the
order of termination. Therefore, the contention raised by the
petitioner as regards not following the principles of natural justice
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and holding of departmental inquiry are of no help. On the basis of
the affidavit-in-reply filed by the respondent, it has been contended
by learned advocate Mr. Munshaw that the petition is required to be
dismissed.
5. Having heard the learned advocates appearing for the parties
and perused the material on record, it is true that the termination
order is punitive and stigmatic in nature. It is also an admitted fact
that the order of termination is passed without holding any
departmental inquiry. However, one fact which needs to be observed
is that in the present case, the petitioner has preferred writ petition
after almost a period of four years of the passing of the order of
termination and therefore, the primary question would be whether
the petition should be dismissed on the ground of petitioner being
indolent litigant. The order of termination was passed in the year
2015 and the petitioner had accepted the same. On a categorical
query put forward to the learned advocate for the petitioner as to
whether there was any material on record which indicates that the
petitioner had made any effort to apprise his case before any Court
or forum. The answer was of categorical 'no'. A fable attempt was
made to demonstrate that the petitioner had made oral
representation. There is nothing on record to indicate that the
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petitioner has made any attempt during the period from 2015 to
2019 to raise the issue of his termination order when there was
stigma attached to it. Therefore, it appears that the petitioner was a
indolent litigant and has remained silent for four years. The
petitioner has suddenly got out of slumber to agitate his issue.
Therefore, point to be considered would be whether such indolent
litigant can be allowed to raise such issue at belated stage. In the
considered opinion of this Court, the answer is straightway 'no'. A
litigant cannot be allowed to take advantage of his own wrong. There
is a categorical lapse and absolute negligence and omission on the
part the petitioner to assert his right.
6. To understand the proposition of law, the Hon'ble Apex Court
in a recent decision in the case of Mrinmoy Maity versus Chhanda
Koley and others passed in Civil Appeal No.5027 of 2024 dated
18.04.2024 held as under:-
"10. The discretion to be exercised would be with
care and caution. If the delay which has occasioned in
approaching the writ court is explained which would
appeal to the conscience of the court, in such
circumstances it cannot be gainsaid by the contesting
party that for all times to come the delay is not to be
condoned. There may be myriad circumstances which
gives rise to the invoking of the extraordinary
jurisdiction and it all depends on facts and
circumstances of each case, same cannot be described
in a straight jacket formula with mathematical
precision. The ultimate discretion to be exercised by
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the writ court depends upon the facts that it has to
travel or the terrain in which the facts have travelled.
11. For filing of a writ petition, there is no doubt
that no fixed period of limitation is prescribed.
However, when the extraordinary jurisdiction of the
writ court is invoked, it has to be seen as to whether
within a reasonable time same has been invoked and
even submitting of memorials would not revive the
dead cause of action or resurrect the cause of action
which has had a natural death. In such circumstances
on the ground of delay and latches alone, the appeal
ought to be dismissed or the applicant ought to be
non-suited. If it is found that the writ petitioner is
guilty of delay and latches, the High Court ought
to dismiss the petition on that sole ground itself,
in as much as the writ courts are not to indulge
in permitting such indolent litigant to take
advantage of his own wrong. It is true that there
cannot be any waiver of fundamental right but while
exercising discretionary jurisdiction under Article
226, the High Court will have to necessarily take into
consideration the delay and latches on the part of the
applicant in approaching a writ court......"
7. The Hon'ble Apex Court has laid down a dicta in the case of
Karnataka Power Corportion Ltd. and another v. K.
Thangappan and another, (2006) 4 SCC 322 whereunder it has
been held that thereunder:-
"6. 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
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fundamental right is involved the matter is still within
the discretion of the Court as pointed out in Durga
Prashad v. Chief Controller of Imports and Exports
[(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the
discretion has to be exercised judicially and
reasonably.
7. What was stated in this regard by Sir Barnes
Peacock in Lindsay Petroleum Co. v. Prosper
Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at
p. 239) was approved by this Court in Moon Mills Ltd.
v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra
SRTC v. Shri Balwant Regular Motor Service [(1969) 1
SCR 808 : AIR 1969 SC 329] . Sir Barnes had stated:
"Now, the doctrine of laches in courts of equity is not
an arbitrary or a technical doctrine. Where it would be
practically unjust to give a remedy either because the
party has, by his conduct done that which might fairly
be regarded as equivalent to a waiver of it, or where
by his conduct and neglect he has though perhaps not
waiving that remedy, yet put the other party in a
situation in which it would not be reasonable to place
him if the remedy were afterwards to be asserted, in
either of these cases, lapse of time and delay are most
material. But in every case, if an argument against
relief, which otherwise would be just, is founded upon
mere delay, that delay of course not amounting to a
bar by any statute of limitation, the validity of that
defence must be tried upon principles substantially
equitable. Two circumstances always important in
such cases are, the length of the delay and the nature
of the acts done during the interval which might affect
either party and cause a balance of justice or injustice
in taking the one course or the other, so far as it
relates to the remedy."
8. It would be appropriate to note certain decisions of
this Court in which this aspect has been dealt with in
relation to Article 32 of the Constitution. It is
apparent that what has been stated as regards that
article would apply, a fortiori, to Article 226. It was
observed in Rabindranath Bose v. Union of India
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[(1970) 1 SCC 84 : AIR 1970 SC 470] that no relief
can be given to the petitioner who without any
reasonable explanation approaches this Court under
Article 32 after inordinate delay. It was stated that
though Article 32 is itself a guaranteed right, it does
not follow from this that it was the intention of the
Constitution-makers that this Court should disregard
all principles and grant relief in petitions filed after
inordinate delay.
9. It was stated in State of M.P. v. Nandlal Jaiswal
[(1986) 4 SCC 566 : AIR 1987 SC 251] that the High
Court in 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 and such delay is not
satisfactorily explained, the High Court may decline to
intervene and grant relief in exercise of its writ
jurisdiction. It was stated that this rule is premised on
a number of factors. The High Court does not
ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and
public inconvenience and bring, in its train new
injustices, and if writ jurisdiction is exercised after
unreasonable delay, it may have the effect of inflicting
not only hardship and inconvenience but also injustice
on third parties. It was pointed out that when writ
jurisdiction is invoked, unexplained delay coupled
with the creation of third-party rights in the meantime
is an important factor which also weighs with the
High Court in deciding whether or not to exercise
such jurisdiction."
8. The Hon'ble Apex Court in the case of Tridip Kumar Dingal
and others v. State of W.B and others, (2009) 1 SCC 768 held
as under:-
"56. We are unable to uphold the contention. It is
no doubt true that there can be no waiver of
fundamental right. But while exercising discretionary
jurisdiction under Articles 32, 226, 227 or 136 of the
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Constitution, this Court takes into account certain
factors and one of such considerations is delay and
laches on the part of the applicant in approaching a
writ court. It is well settled that power to issue a writ
is discretionary. One of the grounds for refusing
reliefs under Article 32 or 226 of the Constitution is
that the petitioner is guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction
of a writ court, he should come to the Court at the
earliest reasonably possible opportunity. Inordinate
delay in making the motion for a writ will indeed be a
good ground for refusing to exercise such
discretionary jurisdiction. The underlying object of
this principle is not to encourage agitation of stale
claims and exhume matters which have already been
disposed of or settled or where the rights of third
parties have accrued in the meantime (vide State of
M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR
261] , Moon Mills Ltd. v. Industrial Court [AIR 1967
SC 1450] and Bhoop Singh v. Union of India [(1992) 3
SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969] ).
This principle applies even in case of an infringement
of fundamental right (vide Tilokchand Motichand v.
H.B. Munshi [(1969) 1 SCC 110] , Durga Prashad v.
Chief Controller of Imports & Exports [(1969) 1 SCC
185] and Rabindranath Bose v. Union of India [(1970)
1 SCC 84] ).
58. There is no upper limit and there is no lower limit
as to when a person can approach a court. The
question is one of discretion and has to be decided on
the basis of facts before the court depending on and
varying from case to case. It will depend upon what
the breach of fundamental right and the remedy
claimed are and when and how the delay arose."
9. Subsequently, the Hon'ble Apex Court in the case of Chennai
Metropolitan Water Supply & Sewerage Board and others v.
T.T. Murali Babu, (2014) 4 SCC 108 has held that:-
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"16. 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 extraordinary and equitable jurisdiction.
As a constitutional court it has a duty to protect 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 scrutinise
whether the lis at a belated stage should be
entertained or not. Be it noted, delay comes in the
way of equity. In certain circumstances delay and
laches may not be fatal but in most circumstances
inordinate 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."
10. In view of the law enunciated the facts of the present case
would reflect that the petitioner was very well aware about the
termination order in the year 2015 and thereafter straightway
preferred writ petition in the year 2019. Therefore, the petition
suffers from the issue of delay and laches and the same is liable to be
dismissed on this sole ground itself. Further reliance placed by
learned advocate Mr. Majmudar in the case of Kanusinh Pratapsinh
Thakor (supra) would not be applicable to the facts of the present
case, inasmuch as, the facts of that case would reveal that the
petitioner in that case was already acquitted and subsequent to
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acquittal in the year 2012, straightway made representations from
the year 2013, 2014 and 2019. Therefore, the litigant was aware and
was trying to assert his rights. Pursuant to the representations made
by the petitioner therein, there was no communication by the legal
Department. Therefore, it was a case wherein the petitioner was
going from pillar to post, writ petition was filed. This Court after
going through all these facts has observed that the writ petition
could not be dismissed on the ground of delay in the facts of that
case.
11. Insofar as the facts of the present case are concerned, the facts
would straightway show that the petitioner was a indolent litigant
and there is nothing on record to show with regard to the assertions
made by the petitioner qua his rights. Thus, learned advocate Mr.
Majmudar has categorically accepted that from the year 2015 to
2019, nothing was done by the petitioner. Therefore the facts of this
case would be very different from the decision relied upon by learned
advocate Mr. Majmudar in the case of Kanusinh Pratapsinh Thakor
(supra). Hence, the present petition is liable to be dismissed on the
ground that the petitioner is found to be guilty of delay and laches
and further being an indolent litigant.
12. In view of the above, the writ petition being devoid of merits is
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hereby dismissed with no order as to costs. Rule is discharged.
(PRANAV TRIVEDI,J)
phalguni
